The opinion of the court was delivered by
Tilghman, C. J.On the trial in the District Court, the jury were charged, that the plaintiff was not entitled to recover, for which various reasons were assigned. To this charge, the counsel for the plaintiff excepted, and the cause has been brought before this court by writ of error. It is unnecessary to consider all the reasons given by the District Court in support of its opinion, because if it appears that for any reason, the action is not maintainable, the judgment must be affirmed. Now there is one' reason against the action, which is irresistible. These partners had neyev *244come to a final settlement of their accounts. And in such'case, the proper action is account render — assumpsit will not lie. The plaintiff alleges that the balance may be deduced from the partnership books. But that is not sufficient. An actual settlement must be made and a balance struck, by the act of both parties, before either can be charged in an action of assumpsit. It is very possible that the books may not show the true state of the account. There may be false entries, or omissions, so that, nothing certain can be deduced from calculations made by one partner,'on the entries appearing on. the face of the book, without the concurrence of the other. There should be a settlement in which both concur. Otherwise the proper remedy is account render. So wasthe-law laiddownintheeaseof Ozeas v. Johnson, 1 Binn. 191, which has never been departed from. It will be found that this principle of Ozeas v. Johnson, is in accordance with the case of Foster v. Allanson, 2 T. Rep. 479, and Moravia v. Levy, cited in the-note to 2 T. Rep. 483.- I am of opinion, therefore, that the judgment of the District Court should be affirmed.
Judgment affirmed,