44 Minn. 278 | Minn. | 1890
It appears from the pleadings that the plaintiffs and the defendant had formerly been engaged in partnership business. The partnership was dissolved by mutual consent, it being agreed, as is alleged in the complaint, that the defendant should retire from the firm, and sell his interest therein to them; that he should pay to the plaintiffs “such sum as would make his interest in said firm equal to that of each of the plaintiffs therein, to wit, one-third interest,” (except as to a matter which need not be particularly referred to,) and the plaintiffs were to pay defendant “a sum equal to his one-third interest in the firm business, as the same then appeared upon the books of the firm.” The complaint alleges that a statement was made, from the books, of the resources and liabilities of the firm and of the interest of each partner therein; and that, relying upon the correctness of that statement, the plaintiffs paid to the defendant the amount thus appearing to be the value of the defendant’s interest, it having been mutually agreed that
The action was of an equitable nature, properly triable by the court. It involved, aside from the specific issues submitted to the jury, the is•sue as to whether there had been a mutual mistake of fact as to the -state of the accounts, by reason of which the plaintiffs had been led to pay to the defendant more than, by the terms of the agreement, the latter was entitled to. That would constitute a cause of action, even though there were no express agreement that if mistakes should be discovered they should be corrected. The attention of the court seems to have been diverted from the alleged mistake as of itself entitling the plaintiffs to a remedy in equity, by the allegation of an express agreement that mistakes should be corrected, upon which the •defendant joined issue. The determination of the issue as to the express agreement left the issue of mistake in fact still undetermined, and judgment should not have been entered upon the special verdict, which did not fully decide the issues in the case. It is obvious from the statement we have made of the case that the only issues tried •were the two which were submitted to the jury.
But the plaintiffs’ motion for a neiv trial of the cause was properly refused, for the plaintiffs were only entitled to a trial of the issues as ■yet untried. The court had authority, of its own motion, to direct the trial of specific questions by a jury, as it did do, (Gen. St. 1878, ■ c. 66, § 217 ;) and we find no error justifying a new trial. While it may be probable, from the fact that the court ordered judgment to ■ be entered on the verdict of the jury, that the court would have re-jused to try the issues which had not been tried, still the order re.-..fusing a new trial was not erroneous, and should be affirmed.
The order for judgment -was probably erroneous, for the reasons .-.above stated, but that error is not reached by a motion for a new '••irial.
Order affirmed.
.Noté, A motion for a reargument of this case was denied October 7,1890.