the commencement of this suit, Fosdick had never heard of the loan in question. At the time of the transaction, Lewis did nothing and said nothing from which could be inferred an intention to borrow the money on the credit of Lewis, Eichelberger & Fosdick. Van Horn's previous dealings furnish no satisfactory proof of such intention. He may have previously lent money to the firm, but there is a failure of proof that it was loaned for the purchase of wheat, especially in view of the fact, that the funds for buying wheat and running the mill were raised by Fosdick as the financier of the concern.

The liability of dormant partners to the creditors of the firm is determinable by well settled legal principles. Those who jointly participate in the profits of business ostensibly carried on by another for his sole use and benefit, are equally liable, when discovered, with the ostensible owner, to all creditors of the concern whose debts were contracted during the time of such participation. Bigelow et al. v. Elliot, 1 Clifford, C. C. 28. According to the weight of judicial authority, where a partnership of two persons is carried on in the name of one partner only, and he gives a note for borrowed money in his individual name, the firm is not bound thereby, unless it is proved that the money for which the note was given was borrowed on the credit of the partnership, or was used in the business or for the benefit of the partnership. The presumption is, that the debt is the debt of the individual in whose name the obligation is made, if at the time, he is carrying on business separate from the business of the firm of which he is a member. If, therefore, the holder of the note would bind the dormant partner, he must prove something more than that he was a partner'in business with the maker of the note. He must prove that the money was borrowed on the credit of the firm, or that it went to the benefit of the firm; but the fact that it was borrowed on the credit of the firm, may be proved by the representations of the maker of the note at the time of the transaction, or by circumstances. U. S. Bank v. Binney et al., 5 Mason, 176; Manufacturers and Mechanics Bank v. Winship, 5 Pick. 11; Oliphant v. Matthews, 16 Barb. 608; National Bank of Chemung v. Ingraham, 58 Barb. 290; Etheridge v. Binney, 9 Pick. 272; Yorkshire Banking Co. v. Beatson, Brit. L. R. 5 C. P. Div. 109.

These principles find an analogous application, where in the same community there are two firms of the same name, each consisting of the same persons, but each engaged in different kinds of business, one of which contains a dormant partner and the other does not. If suit is brought on a promissory note for borrowed money bearing the signature of the common firm name, the presumption is that it is the note of the firm not containing the dormant partner. The plaintiff to recover against the dormant partner, must prove either that the consideration of the note was obtained on the credit of the firm in which, the dormant partner was interested, or that it inured to the benefit of that firm. That it was upon the credit of that firm that the money was borrowed, may be proved by the declarations to that effect of the ostensible partners at the time of the loan, or it may be proved by circumstances. As said by THESIGER, L. J., in Yorkshire Banking Co.. v. Beatson, supra. "When once it is established that a name common to a firm and an individual member of it has been put to a bill as a name of the firm, there is no difference between the liability of partners carrying on business in such a name, and the liability of partners carrying on business in a name which bears in itself the stamp and evidence of a part-nership." If one holds an obligation that bears the signature of a firm purporting to embrace the names of all its members, it may reasonably be presumed, from the face of the instrument itself, that he is dealing with the persons whose names appear thereon, and not with another firm of the same name in which a dormant partner is interested. If there is such another firm, it is open to the holder of the instrument upon discovering the dormant partner, to show by the circumstances of the case as well as by the declarations of the other parties, that the transaction rested upon the credit of that firm, or that such firm received the benefit of the transaction.

The liability of a dormant partner grows out of the principle, that by taking a part of the profits, he takes from the creditors a part of that fund which is the proper security to them for the payment of their debts. Waugh v. Curver, 2 H. Black, 247. But this principle can have no force where it is. shown, that one claiming to be a creditor has not contracted upon the credit of the firm having the dormant partner, and

the property or money advanced by such alleged creditor has not gone into the business of the firm, or inured to the benefit of the dormant partner. As to putting property into the concern, and thereby inducing others to contract with his copartners upon the faith that they are the sole owners of the property, the dormant partner is to be regarded as doing no more than a creditor who lends his money or sells his gods to the firm. There is great force in the language of the court in Banking Co. v. Beatson, supra. "In actions founded upon purely personal contracts, the law does not recognize the mere moral right which the creditor may attempt: to assert against one person in consequence of his having intrusted to another property, in the belief of his ownership of which, the creditor may have contracted with him; in other words, in a case like the present, there is no conduct on the part of the dormant partner, which makes it inequitable on his part to deny or estops him from denying his liability upon a contract to which he was in fact no party, from which he has derived no benefit, and in respect of which he was not held out to the person suing him as liable."

From an application of the aforegoing legal principles to the facts in this case, we are led to the conclusion, that the plaintiff below should not have had judgment upon the issues joined. But, the plaintiff in error-Fosdick-alleges as a ground of error, that the court of common pleas erred in excluding evidence offered by himself when defendant below. At the time of the trial, the "mill books" of Lewis & Eichelberger were in Lawrenceburgh,Indiana,in the hands of their assignéein bankruptcy, the person then entitled to the possession of the same, and who was beyond the jurisdiction of the court. It was material to the defense to establish, that the money borrowed of the plaintiff never went into the milling business of Lewis & Eichelberger. For that purpose, the defendant offered in evidence certain interrogatories propounded to Lewis himself in reference to the books of that firm, and the answers thereto, contained in his deposition, which, upon objection. by the plaintiff were excluded as irrelevant and incompetent. The answers set forth, that the mill ledger contained the entire business of the mill; and that the note to Van Horn, the plaintiff, was never entered in that book, because it did not

belong to the milling business or account. The answers contained relevant and under the circumstances competent testimony, the case being as we think, a proper one for the admission of secondary evidence. In excluding the testimony, we are of opinion, the court erred. In Barton v. Driggs, 20 Wallace 125, it was held, that when it is necessary to prove the results of an examination of many books of a bank to show a particular fact as ex. gr. that A. B. never at any time lent money to a bank, and the examinations cannot be conveniently made in court, the results may be proved by persons who made the examination-the books being out of the state and beyond the jurisdiction of the court. SWAYNE J., in delivering the opinion of the court, says: "Here the object was to prove not that the books did, but that they did not show certain things. The results sought to be established were not affirmative but negative. If such testimony be competent as to the former, a fortiori, must it be so to prove the latter?"

The judgments of the district and common pleas courts will be reversed, and the cause be remanded to the court of common pleas.

[To appear in 40 Ohio St.]

Judgment accordingly.

WARRANTY-QUESTION FOR COURT-IMPLIED AUTHORITY OF AGENT -RECOUPMENT.

(Ohio Supreme Court. February 5, 1884.)

DAYTON v. HOOGLUND.

1. Whether in a contract of sale mule solely by correspondence, there is a warranty as to quality, is a question for the court; and, although parol evil once is not almissible to contradict the agreement, the court may look, not only to the language of the correspondence, but the subject matter of the agreement an i surrounding circumstances, so as to be able to see the transaction as the parties themselves saw it. 2. Authority without restriction to an agent to sell, carries with it authority to warrant.

3. A foreign manufacturer of a superior brand of iron, having sold a portion of it to a customer in this country, advised another customer, known to him to be a minufacturer of bolts and nuts, to buy of the first customer "a ton or so for sample, should you wish to test the quality with a view to import this year;" and such second customer,

informing the manufacturer that he had acted on his advice, and findin⚫ the iron satisfactory for his purpose, ordered twenty tons of the brand: Held, that this amounted to a warranty that the twenty tons, which were to be manufactured by the plaintiff for the defendant for such use in his business, should be equal in quality to such sample.

4. In a suit for the price of a lot of iron manufactured by the plaintiff for the defendant, the defendant, in case there is a breach of warranty as to the quality of the iron, may recoup for such damages as he his sustained, although he has used the iron without offering to return it.

ERROR to the District Court of Hamilton County.

Frederika W. Hooglund and Carl Andres Lindroth, doing. business as N. M. Hooglund, manufacturers and shippers of iron at Stockholm, Sweden, brought suit September 29, 1874, in the Superior Court of Cincinnati, against Lewis M. Dayton, of Cincinnati, engaged in the business of manufacturing nuts. and bolts in that city under the name of American Bolt and Nut Works. The action was to recover the price of twenty tons of Swedish iron, "H. F. S.," of specified sizes, sold by the plaintiff's (through Nils Mitander, their agent, of the city of New York), to the defendant. The contract was made solely by letters between Mitander, as such agent, and Dayton.

The answer to the petition sets forth, among other things, by way of counterclaim, that the iron was ordered of the plaintiffs for use by defendant in his business; that it was sold to him by sample; that the iron furnished was greatly inferior to the sample; that there was much delay in the delivery of the iron; and that by reason of such inferior quality and such delay, the defendant has been damaged.

In reply the plaintiffs admit, "that said contract was in the form of an order, made by the defendant and accepted by the plaintiffs, for said quantity of certain description of plaintiffs' manufacture;" but they deny the allegations of the answer above mentioned, and say that they "proceeded to prepare and did furnish said iron as soon after accepting said order as was practicable;" and the allegations of the answer, above mentioned, were denied.

The cause was tried to a jury in February and March, 1878, and a verdict was rendered for the plaintiffs, on which judg ment was rendered against Dayton for $2,553.78. The dis