delivered the opinion of the court.

By a written contract, between W. A. Posey alone and the West Construction Company, Posey bound himself to furnish gravel and sand enough, and as wanted, to keep up certain work which was being done by the company. In that contract it is provided that, if Posey did not deliver the material, and enough of it, to keep up the work without delay, the .company should have the right to purchase the material elsewhere, Posey to pay the difference in price; and Posey also therein agreed to reimburse loss to the company caused by loss of time in failure to deliver. This contract was put in operation September 10 or 11, 1906, and Posey accordingly began to deliver on September 11th of that year, and fully carried out his contract during the months of September, October, and until November 20th, and was duly and promptly paid for his material.

Pending the performance of this contract, on October 15, 1906, Posey took as a partner in his sand and gravel business A. K. Mclnnis, and the firm name was W. A. Posey & Co. The partnership continued the delivery as if it were bound by that contract in identically the same way, and the delivery of the stuff, after the partnership, was made identically as before, and the bills, in the name of William A. Posey alone, were presented as before by William A. Posey, and the company paid them as before by checks payable to William A. Posey as an individual. There is nothing in this record to show any purpose, after MeInnis formed the partnership with Posey, to deliver otherwise than under that contract, except, as is said, the company re*741ceived a letter, dated November 20, 1906, sighed “W. A. Posey & Co.” In tbeir answer to this letter they addressed William A. Posey individually. All demands for payments were made by William A. Posey alone. His bill against them of December 11, 1906, was made out as a debt due to him, William A. Posey. All accounts were made out against him alone, and all receipts for money were signed by him alone. There is no incident of any violation of the contract made with Posey until after Mc-Innis became his partner. Subsequently, and during that partnership, there were many failures to comply with the written contract; and it is not seriously debatable that the damages to the company, distinctly provided for in the contract, exceeded the amount sued for in this action.

On February 4, 1907, a declaration was filed against the West Construction Company by W. A. Posey & Co. This declaration was filed on the basis of that contract, which is made a part of that declaration and set out as an exhibit to it. Seeing that the firm could not get along in an action based on that contract with the individual, William A. Posey, it was abandoned, and finally the action is based entirely on the delivery of the stuff to the company and the receipt of it by the company, by which the company became liable. It is nowhere pretended in this record that the sand and gravel were not delivered pursuant to that contract, and so we hold that the company had a right to do as it did do — set up by way of recoupment their damages for the nonperformance of the contract. In our view it is immaterial whether the construction company was or was not informed of the introduction of Mclnnis into the business as a partner with Posey. But, even if that notice was given and could be availed of, we hold that on this record no such notice was properly given. If; on the formation of the partnership, it was the purpose to annul that contract, or to mate another, it was incumbent on MeInnis to so state, or to change the mode and manner of the delivery, payment, and receipts. But in fact there appears no information to the company of the partnership; except that Mo*742Innis testifies that Posey had already sold the construction company sand and gravel, “and was selling them sand and gravel right ahead.” And then this question was asked him: “Q. You never did see the West Construction Company about how much they were taking, or anything of the kind ? A. I went to see Mr. Coperhaver shortly after we went into partnership. I told him that I had bought an interest with Mr. Posey, as he was cutting the loads, and I could not afford to let him do that, and unless he would give me a full yard for a load I would stop delivering.” And this appears: “Q. Didn’t you intimate to the jury a while ago that you had letters addressed to you by the West . Construction Company addressed to W. A. Posey & Co. ? A. I think possibly there might be some around here somewhere. Q. Will you produce one of them for the information of the court and jury ?” At this point one of the counsel for the plaintiffs said: “Here’s one.” Then, to the question, “Have you any others ?” the answer was, “That’s enough, ain’t it ?” But that letter is not in the record, and from this testimony and the connection in which it appears, it seems to us to be diverso intuiiu; the point not being as to whether there was any intimation to the company that there should be any change whatever in the contract under which, very manifestly, the sand and gravel were being delivered all the time.

The court below gave a peremptory instruction to find for the defendant, and we think the instruction entirely proper on this record.

Affirmed.