The opinion of the court was delivered by: Bradley, J.
W. L. Nugent, for appellant, Pattie A. Clay. Frank Johnston and another.
This case was commenced by bill in equity filed in the court below in July, 1882, by Pattie A. Clay and Brutus J. Clay, her husband, citizens of the state of Kentucky, against Lucy C. Freeman and C. L. Freeman, her husband, and David I. Field, citizens of the state of Missouri. As the bill was dismissed on demurrer, and the appeal is from the decree of dismissal, it is necessary to state its principal allegations. The facts alleged are substantially as follows:
In 1855 Christopher I. Field (of whom the complainant Pattie A. Clay is only child and heir at law) and his brother, David I. Field, (of whom the defendant Lucy C. Freeman is the widow and the defendant David I. Field is only child and heir at law,) jointly purchased a plantation in Bolivar county, Mississippi, called the 'Content Place,' for the purpose of carrying it on in partnership, under an agreement by which said David was to possess, manage, and control the partnership property for the firm, and the partners were to be equally interested in the property and business. They were also equally to bear losses and expenses, and to share equally the profits realized; but Christopher, being a man of large wealth, did not have the same necessity for calling upon the firm profits as David did. The style of the partnership, as advertised by the partners, was David I. Field & Co., or D. I. Field & Co. The plantation and its equipment of slaves and implements cost from $60,000 to $70,000, the lands alone costing about $54,000. Of this capital Christopher advanced $15,541.26 more than David, which advance was made in the years 1856, 1857, 1858, and 1859, and four partnership notes were executed by David and delivered to Christopher as evidence of these advances, which notes were as follows, namely:
(1) '$7,385.31. On or before the first day of January, 1858, the concern of David I. Field & Co. will be owing C. I. Field the sum of seven thousand three hundred and eighty-five 31-100 dollars, for money advanced the concern for payment for the Leach land, and cash advanced for the purchase of negroes in K'y in the summer of 1856, and to bear six per cent. interest from maturity, or when due. This twenty-third December, 1856.
'D. I. FIELD & Co.' [Seal.]
(2) 'The concern of David I. Field & Co. is owing to C. I. Field the sum of five thousand six hundred and sixty-six and two-thirds dollars, (it being that amount advanced by him of payment to Kirk, balance on concern note due him first day of January last.) He is to be paid six per cent. for said amount from date until paid. This Twentieth March, 1857.
On this note is indorsed a credit as follows:
'$243.50. Rec'd on the within note the sum of two hundred and forty-three 50-100 dollars on settlement of articles purchased at D. I. Field's sale of personal property by C. I. Field and D. I. Field & Co., this first day of January, 1861.
(3) 'Due C. J. Field, or order, the sum of eleven hundred dollars, ($1,100,) it being money this day advanced by paying to Wm. Kirk, through his draft on Hewitt, Norton & Co., of New Orleans, this fifth day of June, 1858.
'D. I. FIELD & Co.' [Seal.]
(4) 'Due C. I. Field, or order, one thousand three hundred and eighty-nine dollars 29-100, for value rec'd, on ...