¶1The opinion of the Court was delivered by
¶2(After stating the case.) If Stearns and the defendants were made partners as between themselves by this written contract, then most certainly this action cannot be sustained. It is very inartificially drawn; but we think it was not the intention of the parties to- form a partnership. The stage property was assigned to the defendants, and Stearns was declared to be their agent, and was to have payment for his services in stock on the road, (which we suppose means stage property,) when the Government contract had expired, in 1841. The reasons which may have induced the *91defendants to have entered into the contract of March, 1840, can not be material, in giving it a construction.
¶3Though two of the defendants did not in point of fact sign the written contract till the September after it bears date, yet, as the contract had been adopted by Stearns, and acted under by him from its date, with the knowledge of the defendants, the two defendants, who in point of fact signed it in September, must be considered as having adopted it from the lime it was signed by the other defendants, and it furnishes evidence that the agreement was, in point of fact, made by all the defendants at .that time.
¶4It is said in argument that the book action will not lie in this case; but we .see no sufficient ground for this objection. Though there is a special agreement as to the manner of payment, yet it is well settled that this does not preclude this form of action. The plaintiff, by the terms of his contract with the defendants, was to receive a reasonable compensation in stock on the road at the expiration of the contract with the government, which expired in July, 1841.
¶5It is said there should have been a special demand made by the plaintiff, before he commenced his suit. But the stock had all been consumed by attachments, and a demand would have been useless. Besides, by the terms of the contract, the time, in which the plaintiff was to receive his compensation in the stock upon the road, had expired by its own limitation, before this suit was commenced. Whenever an obligation is to be discharged by collateral property in a given time, no demand is necessary.
¶6The judgment of the County Court is affirmed.