Assumpsit. The declaration contains two counts for goods sold and delivered. The first states that the trees, which are the subject-matter of this suit, were sold and delivered to Samuel Culbertson. The second *65count states that the trees were sold and delivered to Samuel and Isaac Culbertson, and that Isaac having departed this life, Samuel undertook and promised to pay, &c. General breach, that Samuel had failed and refused to pay, without making any negative averment that Isaac had failed to pay during his lifetime. Plea, the general issue, with notice of set-off, and verdict and judgment in favor of the plaintiff below for 865 dollars.

The plaintiff in error insists that the judgment should be reversed for three reasons—

The first is, that the breach does not negative the payment by Isaac Culbertson, deceased.

Where actions are brought against a surviving partner, in cases like this, it is not necessary to notice the deceased partner in the declaration; but having done so, the rules of pleading would require a negative in the breach as to the payment by the deceased. The failure to make such negation would be open to demurrer; but such objection comes too late after verdict. 1 Peters 68. But this position would be untenable, were the law otherwise, under the state of the pleadings, as there is one good count in the declaration which fully corresponds with the breach. R. S. 1843, p. 732, s. 322.—Newell v. Downs, 8 Blackf. 523.

The second and third points presented in argument deny Tovmsend’s right to maintain this action, on the ground that the facts will not sustain the declaration—

1. Because Townsend could not waive the tort and recover in this form of action; and,

2. Because the Culbertsons cut the timber as the servants. of the Wabash Navigation Company, which, it is alleged, is alone responsible under its charter. We do not think the evidence sufficiently clear to justify this Court in passing upon the second and third points raised in argument.

The Culbertsons were to finish and complete certain locks for the company, and were to be paid for work and materials furnished in the construction of the same, upon estimates made by the engineer of the company.

Thomas A. Smith, a witness for Culbertson, says he “was *66acquainted with the character of the timber sold by Townsend to Culbertson,” and describes it.

Henry Utter, on behalf of Culbertson, testifies to a conversation had between himself and Townsend, in which he says Townsend said, that “he had made a donation of the timber for the mitre-sills and lock-gates, and that the rest of the timber he was to have pay for.”

The timber was used in the construction of the locks, and Culbertson received partial payment for the same before this suit was brought. The contract between the company and the Culbertsons shows that the company did not intend to make itself responsible for either work or materials in constructing the locks, to any other person or persons than the Culbertsons. The testimony is voluminous and somewhat conflicting, and one phase of it might devolve upon us the necessity of investigating the complicated questions involved in the second and third points presented by the plaintiff; but from the whole testimony, we can not say that the jury might not reasonably presume the existence of a contract between the parties in regard to the trees.

Such being the character of the testimony, it is not necessary that we should decide the points secondly and thirdly presented by the plaintiff.

The judgment is affirmed with costs.