Simmons, Justice.
The plaintiffs in error, as administrators of D. N. Gibson, filed their bill in the court below against Gaboury, the defendant in error, for an account and settlement of the partnership business between their intestate and Gaboury. The whole matter in controversy was referred by the court to an auditor. The auditor filed his report, and the plaintiffs in error filed certain exceptions of law and fact thereto. On the trial of the case in the.court below, the defendant moved to strike the exceptions both of law and fact. The court granted the motion and the plaintiffs excepted.
There was no error in the judgment of the court striking the exceptions of law; but in our opinion, the court erred in striking the exceptions of fact. The evidence shows that the two partners were to build a street railroad, that Gibson was to furnish the money, that the money he furnished was to be paid back to him, and that when paid back they were to share in the profits equally. They were also partners in certain land called the “Cook property.” The auditor found that, a short time before the *449death of Gibson, they met together and had a final and complete settlement of all their street railroad accounts; and this is one of the findings excepted to, which exception was stricken by the court. The evidence shows that before Gibson’s death, he purchased a certain number of shares in the street railroad company, for which he gave his check to that company for $2,500, and that company passed it to the partnership, Gaboury receiving it, and it thus became the property of the partnership. He and Gaboury were the sole partners. This check then belonged to him and Gaboury. Hunter testified that in the settlement which he helped Gibson and Gaboury to make, a short time before the death of Gibson, this check was not taken into consideration, nor were the profits of the construction of the street railroad considered in said settlement. We cannot well see how a full and complete settlement of the partnership affairs was made between these parties without taking into consideration this check and the profits or losses of the construction of the street railroad. It therefore seems to us that the auditor erred in finding that the settlement made prior to the death of Gibson, in which Hunter assisted, was a full and complete settlement between these parties; and we think it would have been better for the court to have referred these exceptions of fact to the jury and let them pass upon the same. If the auditor was right in holding there was a complete settlement, he was certainly in error in holding that the check was still open against Gibson, for if the settlement included the check it was paid. If it did not include it, half of the check would be Gibson’s, and it. would be open against him for the other half.
We therefore reverse the judgment of the court below, so that these exceptions of fact may be passed upon by the jury.
Judgment reversed.