Freeman

Appeal from the judgment and from an order denying a new trial.

Plaintiff, as assignee of George H. Tay & Co., sues to recover the balance of account for goods sold and delivered.

The court found that the business was conducted by Charles Badgley and Charles F. Schettler under the firm name of Schettler & Co., until November 17, 1888, when Badgley bought out his partner, and conducted the business until December 4, 1888, when he formed a partnership with R. H. Quincey, who is respondent here.

When the firm of Schettler '& Co. was dissolved it was indebted to George H. Tay & Co. in the sum of $3,250.30, which indebtedness was then assumed by. Badgley, who incurred a further indebtedness to the same firm before he formed the partnership with Quincey of $174.05, making the entire debt at that time $3,424.35.

That in the partnership agreement executed by Badgley and Quincey, December 4,1888, among other things, it was agreed as follows:

“And to that end and purpose the said parties hereto are each to be equal partners, and each own one-half of the stock, tools, goodwill, contracts now entered into by said Badgley or by the firm of Schettler & Co., the pre *374 decessors of said…