¶1 His Honor instructed the jury that, to entitle the plaintiff to recover there must be “ privity of contract.” That is unquestionably true. He then instructed them that according to the evidence there was no privity. Of course that was an end of the case, and was the same as to say that they must find for the defendant.
¶2 In this there was error: for, the fact that the plaintiffs furnished the lumber and the defendant received it, raised an implied promise on the part’ of the defendant to pay the plaintiffs for it.
¶3 This implied promise was, however, subject to be controlled by any express contract which may have existed between the parties, and evidence was offered to show that there was an express contract between one of the plaintiffs, Edwards, and the defendant, to the effect that the defendant was not to pay the plaintiffs, but was to pay him, Edwards, by crediting the amount of the lumber on an individual claim of the defendant's against Edwards. This contract, supposing it to have existed, was no defence in this action, because it was a fraud upon the partnership — the plaintiffs. A creditor of one of several partners has no right, even under an express contract with such partner, to apply partnership effects to the satisfaction of a debt against such partner. This is, however, subject to the exception, that if the other partner consents to the contract, then it is valid, and will control the implied contract.
¶4 Was there any evidence in this case that the other partner, Broaddus, consented to the express contract between Edwards and the defendant ? Broaddus, who was examined as a witness, said that his partner, Edwards, had made the contract with defendant, and informed him ot it, and asked him if the mill of the partnership would furnish the lumber, and that he “assented thereto.” Edwards, who was also examined, said that Broaddus assented to the contract, and was to look to him, Edwards, to settle for the lumber with the firm. This evi- *635 deuce ought to have been submitted to the jury, with proper-instructions, as tending to show that the partnership assented to the express contract made by Edwards and the defendant T and that the implied contract was controlled by the express contract.
¶5 There must be a venire de novo.
¶6 Per Curiam. Venire de novo.