Cobb v. Cole

• Decision Date: 17 August 1892
• Citation: Cobb v. Cole, 51 Minn. 48, 52 N.W. 985 (Minn. 1892)
• Parties: Llewellyn A. Cobb et al. v. John R. Cole
• Court: Minnesota Supreme Court

52 N.W. 985

51 Minn. 48

Llewellyn A. Cobb et al. v. John R. Cole

Supreme Court of Minnesota

August 17, 1892

July 12, 1892, Argued

Appeal by plaintiffs, Llewellyn A. Cobb and Alfred F. Norrish formerly copartners as Cobb & Norrish, from an order of the District Court of Dakota County, Crosby, J., made March 22 1892, refusing a new trial.

On November 30, 1888, the plaintiffs, Llewellyn A. Cobb and Alfred F. Norrish, and the defendant, John R. Cole, were equal partners, dealing in grain at Minneapolis as L. A. Cobb & Co.On that date, the firm dissolved by mutual agreement.It was agreed that Cole should retire from the firm, and should be paid his one-third interest therein.The bookkeeper made a statement of what the books showed the one-third interest to be, and the parties settled according to that statement.Afterwards, plaintiffs claimed to have discovered errors in the statement, by reason of which, they had overpaid defendant.On August, 1889, they brought this action for the correction of the errors and for judgment for the sum overpaid.At the trial, the court ordered the question whether there was an express agreement for the correction of errors, submitted to a jury, reserving the other questions for the court.The jury found there was no express agreement.Plaintiffs' counsel then moved the court to disregard the findings of the jury as being immaterial, and to proceed with the trial by the court.This motion was denied, and judgment ordered for the defendant.A motion by the plaintiffs for a new trial was denied, and on appeal to this court, the order was affirmed, on the ground that plaintiffs were not entitled to a new trial, but only to a trial of the issues as yet untried.Cobb v. Cole,44 Minn. 278.

The case then went to the lower court.The order for judgment in favor of defendant was vacated.On November 24, 1890, the court ordered that the untried issues in the cause be tried before the court without a jury at the December, 1890, term and "that on the second day of said term, the court will hear evidence and determine the character, terms and effect of the transactions and agreements of the parties entered into on or about November 30, 1888, set forth in the pleadings; and that if after the determination of said matters, the court shall deem it necessary to try further issues and examine the firm accounts of the parties, the same shall be done at some day subsequent convenient to court and counsel."On December 10, 1890, the cause came on for trial, and it was ordered in open court, "that at this hearing no testimony shall be submitted except upon the point of whether there was or was not, on or about December, 1888, or at any other time, a sale by defendant to plaintiffs for a fixed sum of his interest in the firm of L. A. Cobb & Co."After hearing the evidence presented, the court took the matter under advisement, and on March 12, 1892, filed its decision ordering judgment in favor of defendant.The court in its decision, besides finding on the question whether there was an agreement for a sale at a fixed sum, found that the books of the firm showed the facts as to defendant's interest to be as represented by plaintiffs, and that there was due defendant on the sale, the sum that was paid to him, and further that there was no evidence upon the trial, of any error or omission in the books of said firm as they stood at the time of said sale.The plaintiffs made a motion for a new trial, and from an order denying it, appealed to this court.

To that extent the order is modified, and a new trial granted.

Morris & Williams, for appellants.

Hodgson & Schaller, for respondent.

OPINION

Dickinson, J.

After the decision of this court on a former appeal in this action 44 Minn. 278, (46 N.W. 364,) the order for judgment in favor of the defendant, which had been made by the district court, was set aside by that court, and an order made directing a further trial of the cause, as to issues not theretofore tried.When the cause was again brought to trial, the court directed, the parties consenting, that at that hearing no evidence should be submitted except as to the point whether the sale by the defendant to the plaintiffs, of the interest of the former in the partnership, was "for a fixed sum."This course had been anticipated in the formal order of the court directing a further trial of the cause, wherein it was said that the court would first hear evidence and determine the character, terms, and effect of the agreement, (respecting the sale,)"and, if after the determination of said matters, the court shall deem it necessary to try further issues ...