¶1The ruling by the court below was correct as a proposition of law. But it did not meet the objection raised by the plaintiff. That objection was “ that the defendant could not, under his declaration in set-off, recover for these two items of company indebtedness.’
¶2*289The declaration in set-off was in form of a count on an account annexed. The two items in question were “ November 6, 1869. To one month’s labor of Frank Tarr, $40. February 15, 1871. To one month’s labor at $50 per month, $50.”
¶3It is manifest that this is not good as a statement of a claim for a partnership balance. It was not demurrable, because it is good as a statement of account for work arid labor, and it does not disclose any purpose to rely upon it as a partnership matter.
¶4The objection goes further than the mere point of pleading. There was a variance in the proof. The evidence discloses no such proiriise to “ pay the defendant said amounts,” as the ruling assumes. The agreement of the plaintiff was “ that in case the defendant should employ one or both of his sons to perform services for the copartnership, the plaintiff would employ some one to off-set those services.” If, upon breach of that agreement, the defendant might properly charge the value of the services of his sons to the copartnership, such charges would not be good as items of account against the plaintiff individually, either as a co-partnership balance, or under the special agreement recited. His liability at the best would be for only one half the amount so chargeable for the services. Proof of such liability, either under the special agreement or for the balance that would result from those charges without offset, in partnership account, would not sustain the claim made under the declaration in set-off.
¶5We are apprehensive that the objection may not have been pointed out at the trial as explicitly as it should have been. But it is distinctly presented upon the bill of exceptions, which must therefore be Sustained.