Opinion by Bailey P. J.
17—2285.
The claim having been disallowed by the probate court, an appeal was taken by Bowzer to the circuit court, where a trial was had before the court and a jury, resulting in a verdict and judgment in favor of the administratrix. The claim as originally filed was for a balance of $1,186.06, due from Crowell to Bowzer on an account stated. By an amendment filed in the probate court, the claim was stated to be for divers sums of money advanced to said Crowell at different dates from August 14, 1878, to November 29, 1878, aggregating $1,426.25, on which there remained due the sum of $1,186.06. The evidence tended to show, and the court thinks satisfactorily showed, that at the time of the transaction out of which the controversy arose, Crowell and Bowzer were copartners doing business under the firm name of C. H. Crowell & Co., and that the moneys advanced by Bowzer were »his contribution to the capital of the firm. It was claimed, however, and it was upon this theory that the case was tried, that the copartnership had been dissolved and an accounting had between said copartners, and that upon such accounting a balance was struck showing an indebtedness from Crowell to Bowzer of $1,230.06, which sum, less a credit of $44, still remained due and unpaid. The evidence tending to show an accounting and final settlement between the parties was, to say the least, very weak and unsatisfactory, and the court will not interfere with the finding of the jury that there was no such accounting. In the absence of an accounting in relation to the affairs and business of the partnership, showing a final balance in his favor, Bowzer was not entitled to a verdict for any specific amount. It is claimed, however, that so long as the evidence showed that the partnership was unsettled the court should have treated the plaintiff’s claim as praying for an adjustment and settlement of the partnership accounts, in the manner provided by the statute in relation to actions of account, and directed the jury to find the plaintiff entitled to such accounting, and that steps should have thereafter been taken under the statute to obtain an accounting by *649means of auditors. Whether it would have been competent for the court in any event to adopt the procedure hero suggested, or evento submit the matter of an accounting to the jury, is not decided, since the cause was not tried on the part of the plaintiff on any such theory. Judgment affirmed.
Judge below, John G. Bogers.
Attorneys, for plaintiff in error, Mr. 0. C. Bonnet and Mr. L. M. Paine ;
for defendant in error, Messrs. Swett, Gross-cup & Swett.
Opinion filed April 7, 1886.
Opinion by Bailey P. J.