Lindner v. Starin ( 1908 )

Kellogg, J. (concurring):

I concur in reversal. The eighth finding of fact states the real issue of fact between the parties without deciding it. The court cannot send that issue to a referee under the name of an account-, ing. If the plaintiff is right upon that issue, it is immaterial how many suits are pending against' the .defendants or what the results of them may be; and the case at bar may properly. turn upon the present record. If, however, these claims represent .losses caused by the plaintiff’s management of the business, it may be more or less difficult upon the present record to determine what losses have been sustained. A judgment in favor of .the various claimants creates no new loss against the business, but might be evidence of what loss actually had taken place before-the action was brought. Such judgment, if binding upon the parties hereto, might be more satisfactory evidence than can otherwise be produced.

I think the case should be remitted to the court, the question mentioned in the eighth finding of fact should be decided,, and thereupon, unless the court shall grant, a motion, which may be made, to suspend tlie further hearing of the action until the further order of the court or to permit further testimony to be given, that the case be decided upon the present record.

Interlocutory judgment reversed and cause remitted to the trial justice for determination of all questions, with costs to appellant to abide event.