The opinion of the court was delivered by'

The only question in this case is, whether the “ horse boot ” was properly charged in plaintiff’s account, or really belonged to Hatch & Henry. It seems to us this must be regarded as settled by the auditor. The purchase of the horse by Henry, with his own money, must be regarded as vesting the property in Mm personally, and not in behalf of the partnership, and this would so remain, unless by agreement, express or implied, it came into the partnersliip. There is no pretence of any express agreement to that effect. Some of the testimony tended to prove such a result by way of implication, as that the horse was put into the company barn, and kept on company fodder, and to some extent, for eight or ten days, employed in the company busmess. But this is perfectly consistent with a desire to wait till the plaintiff made Ms election whether to take the horse or not, he having such an option, by the contract made with Henry. And in the meantime it would be desired naturally enough, that the horse might earn Ms keeping.

But it seems to have been the expectation, if the plaintiff elected to take the horse, it would be on private account, and that he did elect so to take the horse, and withdrew the horse from the company stables, and exchanged him with defendant, and to tMs Henry did not object, which is equivalent to acquiescence. It seems difficult to make anything else of this, then, but that plaintiff took the horse *518under the reservation in Henry’s contract, and by his consent. This, then, must be regarded as vesting the property in plaintiff in his private and personal capacity and not on partnership account. There is nothing to show that either partner had any authority to buy horses on joint account; and the agreement, that the horse received of defendant should be sold on joint account, would as naturally indicate that it was not joint property before, perhaps more so. And the case does not show that the defendant, at the time of the exchange, supposed it was partnership property and the “ boot” payable to them. If that were so, he would be entitled ordinarly to set off his account, certainly, if he was fairly justified in regarding it as a partnership transaction.

Judgment affirmed.