The trial court held that this was an action upon an alleged promise of defendant to pay the debt due plaintiff, and, there being no evidence to sustain such promise, directed a verdict for defendant. The plaintiff now claims that two causes of action are stated in his complaint; one for the collection of a partnership obligation, and the other upon the promise of defendant to pay the debt sued for. If this be admitted, still we are unable to see how the plaintiff has shown any right of recovery. The allegation of copartnership between defendant and Collins was not denied under oath, and must be taken as an admitted fact in the case. There is, however, no proof that the milk sued for was ever sold or delivered to the partnership. The testimony shows that the milk was delivered at the Occidental Hotel, and that Mr. Collins was the proprietor. There is not a word in the testimony that the copartnership was running the hotel business. Without such proof, no recovery could be had upon this alleged cause of action. But we do not think the complaint is susceptible of the construction contended for. It seems very plain that the real cause of action is based upon the dissolution of the firm and the alleged promise of defendant to pay. all of the firm debts. If such promise had been proven, a recovery would have followed. That the plaintiff proceeded upon this theory is evident from the fact that his efforts on the trial were directed towards establishing such promise. If he had been1 seeking to enforce a partnership obligation, Collins, the *672cither partner, was a proper party. If, however, the defendant had urged the objection of a defect of parties, he would have been met with the assertion that the action was founded upon the promise to pay, which would have been a complete answer. .The plaintiff cannot be permitted to occupy such inconsistent positions. The procedure upon the trial indicates that he was relying upon defendant’s promise to pay his debt. The trial court properly- determined that there was no evidence of such promise sufficient to require a submission of the question to the jury.

The claim that the court erred in refusing to allow plaintiff’s attorney to refresh the recollection of the witness Collins by referring him to the magistrate’s notes of testimony in some other case is not well founded. The court ruled that he might so refresh his recollection, whereupon the witness replied that he could not read. Counsel then asked the privilege of reading the testimony to him, which wTas denied. No. effort was made to identify or substantiate the truth7 fulness of the magistrate’s notes. Under those circumstances the ruling of the court was correct.

By the Oourt.— The judgment of the superior court of Douglas county is affirmed.