#### George F. Kistner and Joseph Minarek v. Vaclav Tejcek.

1. Account Stated—Partner May Maintain Suit Against Copartners Upon.—One partner may maintain a suit at law against his copartners upon an account stated showing the sum due.

Assumpsit.—Consolidated common counts. Appeal from the Circuit Court of Cook County; the Hon. John C. Garver, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.

Affirmed.

Opinion filed April 4, 1900.

E. W. Adkinson, attorney for appellants.

Jones & Lusk, attorneys for appellee.

*189Mr. Justice Freeman

delivered the opinion of .the court.

This is an action to recover under a clause in a partnership agreement, which clause is as follows:

> “And it is further agreed by and between the parties hereto, that in case Vaclav Tejcek should feel dissatisfied and shall want to withdraw from said business and the co-partnership herein, then the remaining partners agree to pay him back his eight hundred dollars invested by him.”

The “ remaining partners,” who made the agreement, are the appellants herein. The partnership by its terms was to begin October 16, 1897, and to continue until February 16, 1898, a period of four months, erroneously stated as “ three months ” in the agreement. A month before the expiration of that period appellee signified his desire to withdraw. Negotiations ensued, and finally appellee agreed to take $650 in settlement of his claim under the clause in controversy, to be paid partly in cash and the balance in secured notes. He was paid something on account, but appellants failed to complete the settlement as agreed upon. He sued, therefore, on the original agreement, and recovered judgment for $800, less the $200 which had been paid.

The objections to the judgment that appellee did not withdraw until after the expiration of the term, and that there was a settlement, binding upon him, of the partnership matters, are not sustained by the evidence. As under the agreement, when appellee chose to withdraw, nothing remained for appellants to do but pay the money, recovery was properly had under the common counts. One partner may maintain a suit at law against his copartners upon an account stated, showing the sum due. Berry v. DeBruyn, 77 Ill. App. 359, 361, and cases there cited.

The judgment of the Circuit Court -will be affirmed.