Upon the accounting had in the court below, the plaintiff made certain claims which he now alleges that the court overruled to his harm. These claims will be briefly considered in the order in which they are set forth in the plaintiff’s brief. ■ ■ ■
The first is that the court erred in charging the plaintiff, personally, under the terms of the partnership agreement, with the amount paid for the services of a treasurer of the Auditorium Theater. The amount so charged is $252.
Under the written agreement of copartnership it was clearly the duty of the plaintiff, so far as the Park City Theater was concerned, either to act as treasurer himself or to furnish one at his own expense. About this no question is made. But the court finds that the Auditorium Theater was managed and conducted by the firm under the terms and conditions of the written agreement. This is, in effect, a finding that they did so by virtue of the oral agreement subsequently made with respect to the Auditorium. If so, the plaintiff was rightly charged with the sum in question.
In liis reply, the precise claim of the plaintiff is that the Auditorium, by the agreement of the parties, was to be conducted in the same manner as the other theater, and “that the duties imposed upon each person ” with regard to that theater, were the same as those imposed by the written agreement with respect to the other. In addition to this, it appears that during the copartnership the plaintiff understood the matter in this way; for when the defendant drew a check for his services for bill posting for the Auditorium, the plaintiff promptly drew a check for a like amount to himself, claiming that such bill posting was an expense to be borne by the defendant, personally, under the agreement. Upon the record, it is difficult to see how the defendant was bound to furnish bill posting for the Auditorium at his expense, if the plaintiff was not bound to furnish a treasurer for it at his expense. Both are bound or neither is bound. We tlfink the ruling upon this point was correct! But if it should be conceded that *503neither party was bound, the plaintiff was not harmed by the ruling, for the amount disallowed to the defendant was larger by considerable than the amount charged to the plaintiff.
The second error set forth upon the brief relates to the account filed by the defendant with his second defense as Exhibit B.
The plaintiff’s claim upon this point seems to be that the account stated in that exhibit, and as there stated, was final and conclusive upon the defendant; that it should have been taken as the basis for determining the amount due the plaintiff ; and that he was entitled to have it corrected by having credits for certain payments made by him entered therein, and to a judgment based upon it when so corrected.
This exhibit was not filed as and for the account ordered by the court. It was filed as a part of one of the defenses and as a part of the counterclaim. It formed no part of the first defense. It is not even alleged to be a full account of all moneys received and paid out by the defendant in the partnership business. All of its items were in dispute under the pleadings. The finding is that it is an accounting for the business of the Park City Theater, only. It contains no item of receipt or disbursement growing out of the business of the Auditorium, and is therefore only a partial statement of the financial transactions of the firm. Clearly, under the first defense, neither the defendant nor the court was bound to consider Exhibit B as limiting the way in which the account should be taken. Under that the defendant was entitled to have a full accounting as to both theaters. He was also entitled to this under certain allegations of his counterclaim. The plaintiff had called for a full and complete accounting as to both theaters. From his familiarity with the business and accounts of the firm he must have known that Exhibit B was only a partial account, and he was apprised by the pleadings that the defendant was entitled to a full accounting. The Auditorium books had been lost, but other books and accounts remained and were before the court, by means of which a full accounting could be had. From these and other sources, aided by the evidence of the parties given *504and received, so far as we can see, fully and freely and without objection, with reference to the business of both theaters, the court took the account and found the balance. Upon the record, we think the plaintiff’s claim upon this point has neither foundation nor merit, and was properly overruled.
The third claim in the brief is that the court erred “ in not deducting from the account rendered by the defendant the sum of $884 withdrawn by the plaintiff to set off a like amount withdrawn by the defendant; both sums were taken from the receipts of the Auditorium theater.” This claim is based upon the plaintiff’s theory as to the conclusiveness of Exhibit B upon the defendant and the court, heretofore considered, and falls with it. Upon the account as taken, the record discloses no error with respect to this item of $384.
In connection with this claim the plaintiff says the court imposed upon him the burden of proving the contents of the lost book of the Auditorium Theater, and of showing that the defendant had more of the receipts of that theater than he was entitled to. It nowhere in the record appears that the court made any such ruling. It does appear that the plaintiff, on the trial, claimed that the burden of showing the condition of the accounts, and the receipts and expenditures of the Auditorium Theater, was upon the defendant; but it nowhere appears that this claim was overruled.
The fourth and last claim upon the brief is, that upon the facts found the court “ should have rendered judgment for the plaintiff to recover the amount due him upon correction of defendant’s account, after adding thereto the amount paid by plaintiff on account of partnership debts.” This claim is also based upon the plaintiff’s theory that Exhibit B should have been taken as the sole basis of the accounting, and falls with it.
There is no error.
In this opinion the other judges concurred.