Cobb v. Cole

Mitchell, J.

This case has already been twice before this court, 44 Minn. 278, (46 N. W. Rep. 364;) 51 Minn. 48, (52 N. W. Rep. 985.) Most of plaintiffs’ assignments of error (twelve in number) are-predicated upon what we deem a mistaken idea as to the real issue in the case. The complaint alleged that the agreement of the parties was that the plaintiffs were to pay the defendant “a sum equal to his one-third interest in the firm business, as the same then appeared upon the books of the firm;” that a statement was taken from the firm books; that the statement was erroneous, and showed the interest of the defendant to be larger than it really was, according to the terms upon which the settlement was to be made, “as-from the books of said firm fully appears.” There is nowhere a single allegation that the books themselves were incorrect, but the sole ground on which the plaintiffs sought relief was that the “statement” on which the parties made the settlement was not an accurate statement of what the books showed. But now plaintiffs seek to inject a new issue into the case, viz. that the books themselves were inaccurate; and this, too, in the face of the fact that they themselves alleged, what has always been conceded np to the present time, that the agreed basis on which the settlement was made was what the books then showed. Hence, after the first two trials, the only material issue that remained to be tried was whether the statement taken from the books, and upon which the settlement was made, correctly stated what the books showed; and that the court was justified in finding that it did is conclusively established by the stipulation of the parties. The findings of the court, that there were mistakes in the books, were wholly immaterial, and outside of the issues in the case.

(Opinion published 56 N. W. Rep. S2S.) Application for reargument denied November 21, 1893.

In this view of the case, it becomes unnecessary to consider the other assignments of error.

Judgment affirmed.