Cobb v. Cobb

• Decision Date: 19 August 1890
• Citation: Cobb v. Cobb, 44 Minn. 278, 46 N.W. 364 (Minn. 1890)
• Parties: COBB ET AL. v COLE.
• Court: Minnesota Supreme Court

44 Minn. 278

46 N.W. 364

COBB ET AL.vCOLE.

Supreme Court of Minnesota.

Aug. 19, 1890.

Syllabus by the Court.

1. A mistake of fact in an accounting between copartners upon dissolution of the partnership affords ground for relief in equity, irrespective of any express agreement that mistakes should be corrected.

2. In an equitable action, specific issues having been tried before a jury by order of the court, leaving other material issues untried, the court, upon the verdict of the jury, ordered judgment for the defendant. Held, that the plaintiffs were not entitled to a new trial for such error, but only to a trial of the untried issue, upon motion being made therefor.

3. The court may direct specific issues, in an equitable action, to be tried by a jury.

Appeal from district court, Dakota county; CROSBY, Judge.

Cole, Bramhall & Morris, for appellants.

Hodgson & Schaller, for respondent.

DICKINSON, J.

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 if any error should be discovered in the statement they should be corrected. The complaint then alleges the existence of errors in the statement, since discovered, which rendered the result of the computation of the defendant's interest in the partnership erroneous to the extent of more than $1,400, as appears from the books of the firm, by reason of which mistake the plaintiffs overpaid the defendant in an amount stated, which they seek to recover in this action. The defendant put in issue (1) the alleged mistake; (2) the allegation that he agreed to pay to the plaintiffs such sum as would make his interest equal to that of each of the plaintiffs; (3) the allegation of an agreement that any errors in the statement of the accounts should be corrected; and (4) the defendant alleged that the plaintiffs, having charge of the books of the firm, and representing to the defendant the state of the accounts, which they professed to know, offered to pay to the defendant a specified sum for his interest in the partnership business, (excepting as to certain matters,) which sum, being accepted by him, was paid. When the cause was called for trial the defendant demanded a...