VooEniES, J.
The facts of this case may be briefly summed up as follows: The firm of D. T. Wheeler & Oo., composed of D. T. Wheeler and Samuel B. Bulloch, of St. Louis, Mo., enclosed to the defendants a claim of theirs against Turner, Wilson & Oo., of the city of New Orleans, for collection. The claim was collected by suit brought in the name of B. T. Wheeler & Oo. against Turner, Wilson & Oo., by Messrs. Wolfe & Singleton, attorneys at law, and the net proceeds, $1529 75, paid over to the defendants on the 7th December, 1852. On the 11th September, 1852, 8. B. Bulloch addressed a letter to the defendants, instructing them to place the proceeds of this claim, when collected, to the credit of Burhee, Amtell & Go., of which firm he was then a member. This firm continued in business until January, 1858, when Axtell withdrew, and then continued in the name of Burhee & Bulloch. 8. B. Bulloch, in a letter to defendants, dated.19th October, 1852, says: “This claim I have placed in the hands of Mr. Dwight Burhee, for a specific purpose, which, when collected, you will please apprise him and pay to his order.” The firm of B. T. Wheeler & Oo. was dissolved on the *Uh June, 1852, Conceding the authority of Bullock to transfer this claim, still it may be observed in passing, that this could hardly be construed into a transfer vesting the absolute ownership in Burhee ; indeed the subsequent acts of the parties clearly indicated that such was not their intention. Bulloch, in a letter of the 11th December, 1852, to the defendants, says: “ Tour favor of the 1st instant is at hand, I wish you to invest the proceeds of the claim against Turner, Wilson & Oo., in your own bill on Frost & Foster, New Torlc, at 70 days, in favor of James 8. Felps, and remit the same to me.” The letter of the 1st instant referred to, announced the collection of the claim by Messrs. Wolfe & Singleton. On the 7th of the same month, the defendants enclosed to S. B. Bullock a statement of the attorneys, showing the settement of the claim on Turner, Wilson & Go., and informing him that the net proceeds, $1529 75, were placed to the credit of Dwight Dwhee, as requested. The latter was also advised of this by letter of [334]*334the same date. On the 13th December, 1852, Bulloch wrote to the defendants, acknowledging the receipt of this letter and informing them of the tenor of his letter of the 11th, adding: “On another page you will please find an order from Mr. Dwight Du/rhee for the same.” The order referred to is as follows, viz :
“ Saint Louis, Dec. 13th, 1852.
Messrs. Price, Frost & Go., Mew Orleans.
. Gentlemen : Your favor of 7th instant is received. You will please invest the amount to my credit, in a seventy day bill, as requested and directed by Mr. 8. B. Bullock in a late communication from him to you. On the other page you will find those instructions copied.
Dwight Durkee.”
This new disposition of the fund held by the defendants was then fully acquiesced in and ratified by the plaintiff, who thereby ceased to have any further interest therein. It is clear that this fund then reverted back to the late firm of D. T. Wheeler & Go., even supposing that it had been legally transferred to the plaintiff. That transfer had been made by Bulloch in his individual name, as we have seen, and it does not appear that D. T. Wheeler ever had any notice of it. The following draft was drawn by the latter on Messrs. Wolfe & Singleton, viz:
“Alton, December 1st, 1852.
“ For value received, please pay to the order of W. 8. Gilman any funds you have, or may hereafter collect, on account of a judgment obtained in favor of D. T. Wheeler & Go., against Turner, Wilson & Go., of New Orleans, after paying your fees and the necessary expenses attending its collection.
D. T. Wheeler & Co.,
By D. T. Wheeler in liquidation.”
In this draft we see Wheeler assuming an authority to act for the late partnership in the liquidation of its affairs; and in the absence of proof to the contraiy, we are bound to presume that he had the same authority so to act as the other partner Bullock. Mr. Wolfe's testimony shows that shortly after the money collected had been paid over by Wolfe & Singleton, within a few days, this draft was presented to them. It was taken to Price, Frost & Go., and by them paid to the extent of $1529 75. The plaintiff and Bullock were both notified of the paj'ment of this draft, by letters addressed to them respectively by the defendants, and which, the evidence shows, they received about the 26th December, 1852. No answer appears to have been given to either of these letters.
On the 22d February, 1853, the plaintiff drew a draft at sight on the defendants, in favor of and to the order of Lucas S Simons, for the sum of $1629 75, and is closed as follows: “and charge the same to account of as advised by your letter of December 7th, 1852.” It is endorsed in blank by Lucas & Simons and Matthews, Finley & Go., and protested for non-payment on the 1st March, 1853. This draft, with the blank endorsements stricken out, and the defendants’ letter of the 7th December, 1852, formed the basis of the plaintiff’s action, which was resisted by the defendants on various grounds, among others, that they had paid the draft in favor of W. S. Gilman on Messrs. Wolfe & Singleton, of which the plaintiff immediately advised, and knew at the time he drew this draft that he had no funds to his credit on their books, and by his silence acquiesced in the disposition of said funds; that shortly [335]*335after this claim was sent to the defendants, the firm of B. T. Wheeler & Go. was dissolved, and 8. B. Bullock formed a commercial partnership with the plaintiff, who still continues to be his partner; that the plaintiff paid no valid consideration for this claim, and the funds belonged to B. T. Wheeler S Go. at the time they were paid over to the defendants; that the plaintiff and Bulloch had fraudulently combined to make the defendants pay this debt twice, although they had no other interest in the matter than to ..give their friendly assistance to B. T. Wheeler & Go. to collect their claim; .that at the time said draft was paid by them, said funds were still under the control of B. T. Wheeler & Go. We have before us the testimony of both B. T. Wheeler and 8. B. Bulloch. Wheeler says he knew nothing of the transfer to plaintiff, but it was agreed between himself and Bullock, at the time of the dissolution of their firm, that the debt due by Turner, Wilson & Go., when collected, should be applied to the payment of a judgment against them in favor of J. Goons; that he drew an order on Wolfe & Singleton, in the name of B. T. Wheeler & Go., for the amount of the claim ; $712 62 of which were applied to the payment of one-half of Goon’s judgment, the other half having been paid by 8. B. Bullock, and the balance was paid to W. 8. Gilman for money borrowed from him and placed in the firm of B. T.
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VooEniES, J.
The facts of this case may be briefly summed up as follows: The firm of D. T. Wheeler & Oo., composed of D. T. Wheeler and Samuel B. Bulloch, of St. Louis, Mo., enclosed to the defendants a claim of theirs against Turner, Wilson & Oo., of the city of New Orleans, for collection. The claim was collected by suit brought in the name of B. T. Wheeler & Oo. against Turner, Wilson & Oo., by Messrs. Wolfe & Singleton, attorneys at law, and the net proceeds, $1529 75, paid over to the defendants on the 7th December, 1852. On the 11th September, 1852, 8. B. Bulloch addressed a letter to the defendants, instructing them to place the proceeds of this claim, when collected, to the credit of Burhee, Amtell & Go., of which firm he was then a member. This firm continued in business until January, 1858, when Axtell withdrew, and then continued in the name of Burhee & Bulloch. 8. B. Bulloch, in a letter to defendants, dated.19th October, 1852, says: “This claim I have placed in the hands of Mr. Dwight Burhee, for a specific purpose, which, when collected, you will please apprise him and pay to his order.” The firm of B. T. Wheeler & Oo. was dissolved on the *Uh June, 1852, Conceding the authority of Bullock to transfer this claim, still it may be observed in passing, that this could hardly be construed into a transfer vesting the absolute ownership in Burhee ; indeed the subsequent acts of the parties clearly indicated that such was not their intention. Bulloch, in a letter of the 11th December, 1852, to the defendants, says: “ Tour favor of the 1st instant is at hand, I wish you to invest the proceeds of the claim against Turner, Wilson & Oo., in your own bill on Frost & Foster, New Torlc, at 70 days, in favor of James 8. Felps, and remit the same to me.” The letter of the 1st instant referred to, announced the collection of the claim by Messrs. Wolfe & Singleton. On the 7th of the same month, the defendants enclosed to S. B. Bullock a statement of the attorneys, showing the settement of the claim on Turner, Wilson & Go., and informing him that the net proceeds, $1529 75, were placed to the credit of Dwight Dwhee, as requested. The latter was also advised of this by letter of [334]*334the same date. On the 13th December, 1852, Bulloch wrote to the defendants, acknowledging the receipt of this letter and informing them of the tenor of his letter of the 11th, adding: “On another page you will please find an order from Mr. Dwight Du/rhee for the same.” The order referred to is as follows, viz :
“ Saint Louis, Dec. 13th, 1852.
Messrs. Price, Frost & Go., Mew Orleans.
. Gentlemen : Your favor of 7th instant is received. You will please invest the amount to my credit, in a seventy day bill, as requested and directed by Mr. 8. B. Bullock in a late communication from him to you. On the other page you will find those instructions copied.
Dwight Durkee.”
This new disposition of the fund held by the defendants was then fully acquiesced in and ratified by the plaintiff, who thereby ceased to have any further interest therein. It is clear that this fund then reverted back to the late firm of D. T. Wheeler & Go., even supposing that it had been legally transferred to the plaintiff. That transfer had been made by Bulloch in his individual name, as we have seen, and it does not appear that D. T. Wheeler ever had any notice of it. The following draft was drawn by the latter on Messrs. Wolfe & Singleton, viz:
“Alton, December 1st, 1852.
“ For value received, please pay to the order of W. 8. Gilman any funds you have, or may hereafter collect, on account of a judgment obtained in favor of D. T. Wheeler & Go., against Turner, Wilson & Go., of New Orleans, after paying your fees and the necessary expenses attending its collection.
D. T. Wheeler & Co.,
By D. T. Wheeler in liquidation.”
In this draft we see Wheeler assuming an authority to act for the late partnership in the liquidation of its affairs; and in the absence of proof to the contraiy, we are bound to presume that he had the same authority so to act as the other partner Bullock. Mr. Wolfe's testimony shows that shortly after the money collected had been paid over by Wolfe & Singleton, within a few days, this draft was presented to them. It was taken to Price, Frost & Go., and by them paid to the extent of $1529 75. The plaintiff and Bullock were both notified of the paj'ment of this draft, by letters addressed to them respectively by the defendants, and which, the evidence shows, they received about the 26th December, 1852. No answer appears to have been given to either of these letters.
On the 22d February, 1853, the plaintiff drew a draft at sight on the defendants, in favor of and to the order of Lucas S Simons, for the sum of $1629 75, and is closed as follows: “and charge the same to account of as advised by your letter of December 7th, 1852.” It is endorsed in blank by Lucas & Simons and Matthews, Finley & Go., and protested for non-payment on the 1st March, 1853. This draft, with the blank endorsements stricken out, and the defendants’ letter of the 7th December, 1852, formed the basis of the plaintiff’s action, which was resisted by the defendants on various grounds, among others, that they had paid the draft in favor of W. S. Gilman on Messrs. Wolfe & Singleton, of which the plaintiff immediately advised, and knew at the time he drew this draft that he had no funds to his credit on their books, and by his silence acquiesced in the disposition of said funds; that shortly [335]*335after this claim was sent to the defendants, the firm of B. T. Wheeler & Go. was dissolved, and 8. B. Bullock formed a commercial partnership with the plaintiff, who still continues to be his partner; that the plaintiff paid no valid consideration for this claim, and the funds belonged to B. T. Wheeler S Go. at the time they were paid over to the defendants; that the plaintiff and Bulloch had fraudulently combined to make the defendants pay this debt twice, although they had no other interest in the matter than to ..give their friendly assistance to B. T. Wheeler & Go. to collect their claim; .that at the time said draft was paid by them, said funds were still under the control of B. T. Wheeler & Go. We have before us the testimony of both B. T. Wheeler and 8. B. Bulloch. Wheeler says he knew nothing of the transfer to plaintiff, but it was agreed between himself and Bullock, at the time of the dissolution of their firm, that the debt due by Turner, Wilson & Go., when collected, should be applied to the payment of a judgment against them in favor of J. Goons; that he drew an order on Wolfe & Singleton, in the name of B. T. Wheeler & Go., for the amount of the claim ; $712 62 of which were applied to the payment of one-half of Goon’s judgment, the other half having been paid by 8. B. Bullock, and the balance was paid to W. 8. Gilman for money borrowed from him and placed in the firm of B. T. Wheeler & Go. as capital.
Bullock says, that he is now and has been, since the dissolution of the firm of B. T. Wheeler & Go. connected with the plaintiff as partners in business ; that Mr. Wheeler, senior member of the firm of B.‘ T. Wheeler & Go., was collecting debts and selling claims of said firm; and at the same time refusing to appropriate the funds thus received to the payment of debts due by the firm, but applied the same to the payment of his individual debts. He was putting property out of his hands to prevent the payment of debts justly due by the late firm of B. T. Wheeler & Go., and forcing them upon him. 'Phis was the condition of their business when he (Bullock) wished, and was determined, that the assets of the firm, as far as he could control them, should be appropriated to the payment of the debts due by the firm. “ There was a suit of $1250 against the late firm of B. T. Wheeler é Go., in one of their courts in St. Louis city, somewhat connected with'the case against Turner, Wilson & Go., and was willing to transfer their claim against the latter to the plaintiff in that suit, but his proposition was declined. He then wished the plaintiff to advance him the money on it to pay the debt of the late firm of B. T. Wheeler & Go. This was declined by the plaintiff, on the ground that he did no't wish to be troubled with the suit. After some persuasion he assented, and a transfer was executed in his favor.
Under this state of facts, we are of opinion, the defendants are clearly not liable to the plaintiffs.
It is therefore ordered and decreed, that the judgment of the District Court be avoided and reversed ; and the demand of the plaintiff against the defendants be rejected at his costs; said appellee to pay costs of both courts.
A rehearing having been granted in this case, the judgment of the court was pronounced by