There is nothing'in the substance of the contract between Mrs. Brown and the two Ahlfeldts, at the time of its formation, which tends to prove an agreement on her part, for a valuable consideration, to forbear the collection of her note for a definite period of time. The two partners simply agreed that she might pay'for a sewing machine, if she was the highest and best bidder when it was sold in the progress of an auction of some of the firm assets, by crediting the amount of her purchase as so much money on a note which she held against one of the partners.- In such a transaction she did not get the article bought- at a reduced rate, for it is not pretended that she had any-advantage over any other bidder at the auction sale or that the auctioneer was directed to receive
It is suggested that the authority given to plaintiff’s intestate to credit the note with the amount of her bid for the machine, furnished a sufficient consideration, because the thing bought was a partnership asset. The complete reply to this is, that the defendant made no such claim of any such consideration in the answer filed by him in this cause. The answer alleges that the sale was made by Ahlfeldt, the payor on the note, not by the firm; hence it is clear appellant can not rely on an unpleaded defense. That parties are concluded by their pleadings and restricted, in the maintenance of an affirmative •defense, to the- special allegations upon which it is based, is elementary law.
The obtention by a creditor of the assets of a firm in payment of the private indebtedness of one of its members, if
