#### Henry Smith, Defendant in Error, v. Henry H. Roberts, Plaintiff in Error.

Gen. No. 17,423.

(Not to he reported in full.)

Error to the Municipal Court of Chicago; the Hon. Arthur W. Deselm, Judge, presiding. Heard in this court at the October term, 1911.

Affirmed.

Opinion filed October 13, 1913.

Statement of the Case.

Action by Henry Smith against Henry H. Roberts to recover on a promissory note. From a judgment for plaintiff for $512.33 and costs, defendant brings error.

*228Abstract of the Decision.

1. Bills and notes, § 56 * —what constitutes failure of consideration. The consideration for a note given by one partner for his copartner’s interest in the partnership does not fail because the payee did not turn over the evidence of certain contracts as assets.

2. Bills and notes, § 406*—proof of right to set-off. In an action on a promissory note given by one partner for the interest of his copartner in order for defendant to avail of a set-off on account of plaintiff’s failure to turn over certain written contracts as assets in accordance with the agreement for dissolution, he must prove the existence and nondelivery of such contracts, the undertaking to deliver same, the default in that undertaking and the resultant damages.

James J. Leahy, for plaintiffs in error; Albert O. Olson, of counsel.

I. M. Jordon and Thomas Bentham, for defendant in error.

*

See Illinois Notes Digest, Yols. XI to XIV, same topic and section number.

Mr. Justice Brown

delivered the opinion of the ' court.