Lambert

This is an appeal from a judgment in favor of defendant, and from an order denying the plaintiff’s motion for a new trial.

The complaint contains the common counts, alleging in various forms that the defendant is indebted to the plaintiff in the sum of $575.28 for goods, wares and merchandise, sold and delivered by plaintiff to defendant at his special instance and request.

Upon the trial the evidence showed that a partnership had existed between the defendant and one Lipsett. Plaintiff then offered testimony tending to show a sale of the goods and merchandise to the partnership. The defendant objected to the offered testimony on the ground that under the pleadings the proof of a partnership indebtedness was inadmissible, and the court sustained the objection.

The question presented for decision is as to whether the allegations of the complaint as to an individual indebtedness can, in the absence of any plea of nonjoinder by defendant, be supported by evidence of a partnership indebtedness, the defendant being one of the partners. The precise question does not appear to have been decided in this state, and is an important one.

We are of opinion that the evidence was…