77 Iowa 540 | Iowa | 1889
I. The petition alleges that plaintiff and D. R. Knight, in 1869, entered into an oral agreement for a copartnership to erect a steam mill and elevator, and
The defendant, in her answer, denies the alleged mistakes and errors in the books charged by plaintiff, and alleges that there are mistakes and omissions which, if corrected and entered, would show a larger balance in her favor. She alleges that plaintiff has converted and appropriated to his own use a large sum of money coming into his hands as surviving- partner. She admits that there never - has been a settlement of the accounts of the partners with each other and with the firm. She prays that the accounts of the concern be settled, and that she be allowed the amount to which she is fairly entitled.
The answer and amended answer, as defense relating to the contract above referred to, deny that Knight signed or executed it, and allege that it is usurious, and therefore void, and that, as no claim was made under it, nor attempt made to enforce it, in the lifetime of Knight, plaintiff is now barred and estopped from all attempt to enforce it. An amended petition sets out other alleged mistakes and omissions in the books, and prays that plaintiff be allowed for. them in the final decree. The answer to this amendment denies all the allegations therein, and alleges that the ledger of the firm is correct, except as to one item of near sixteen hundred dollars; that the accounts have never been questioned during the existence of the firm; and that defendant is barred and estopped by the statute of limitations from now questioning the same.
The parties introduced evidence upon the issues evolved by the pleadings, and thereupon the district court rendered the following decree: “It is therefore ordered and adjudged by the court that all of the affirmative relief prayed by plaintiff be denied, and that
II. We are united in the opinion that the district court erred in not completely disposing of the case upon one trial. The decree, without presenting any findings of facts, disposes of whatever in plaintiff’s petition may be called a prayer for affirmative relief, and to that extent dismisses his petition. The affirmative relief prayed for was that a judgment be rendered in plaintiff’s favor. The allegations as to the contract for a settlement and as to the various mistakes, errors and omissions, are not prayers for affirmative relief. They are averments of facts, upon which plaintiff bases his claim for “affirmative relief.”,' The decree does not pretend to settle the issue raised by defendant; it simply decides that plaintiff is not entitled to affirmative relief. The cause is retained for the purpose of requiring plaintiff to account as surviving partner.
III. We have given the case very careful attention, and are not prepared to assent to all of the conclusion upon the evidence which the court below reached. We think the case should not be split for trial. It is a case which demands the attention of a careful referee, who shall present fully the evidence, together with his findings of fact and of law upon all questions arising in the case, if the court below, in the exercise of its discretion, sends it to a referee. We probably could detertnine the effect of some, possibly all, of the evidence introduced by the parties, and hold that plaintiff is or is not entitled to a decree for relief thereon. But, as the case should be determined upon one trial as to all of the issues, and as to both sides, so that the decree shall fully and completely settle all the rights of all the parties, and as this cannot be done upon the record before us for the reason that the case remains in the court below for trial upon issues involving the rights of both parties, we send the case appealed back for trial