ON REHEARING.
In a petition for rehearing plaintiff urges that, inasmuch as this is an adjustment between partners, he should not be charged with the entire $4,000 which we have found he retained from farm funds for services not rendered, his contention being that this sum should be returned to the partnership; and that as a partner he is entitled to one-half of it, or, in other words, as between Emery and himself he should be charged with but half of the $4,000. This would be true if the partnership had discharged all of its obligations, and the sum so returned represented undivided profits. But such is not the case. It appears that for the unadjusted year, 1894, no portion of the $6,000 due Emery has been paid. It is apparent that there can be no division of funds to the partners as such until this is paid, and until that time the funds of the partnership must be applied to discharging that obligation. Under this state of facts the $4,000 *533of partnership funds in Lay s hands is all due to Emery, and is properly charged to Lay. The deduction of the item of $1,970.60 for the error in the report of farm moneys in Lay’s hands at the time of the fire was made after a most careful examination of all the evidence tending to throw light on that period. Further examination has not changed our views. 'It is admitted that at the date of the fire Lay had received $11,878.15 of partnership moneys since his last report. The computations made by Lay upon Exhibit 19 refer only to this period, and evidently were made with a view to show the balance of cash remaining in the bank belonging to the farm. Lay says: “This was intended to cover all of the matters of 1891 that had not been settled, and all of the affairs of 1892 up to the fire. It included the whole. That is what it had reference to.” Taken as an explanation for this period, it is clear that the two items, viz: “Lay’s salary” and “Offset, Emery,” were improperly deducted. It is true, we have given this exhibit a weight and signifiance not attached to it by counsel for either party or by the trial court. It stands in record, however, as the only explanation offered by Lay as to the manner the balance of $608.25 was found. Should we reject it, as counsel for plaintiff suggests, as meaningless, then plaintiff would have to account in detail for the entire sum received by him during this period, for it is only through this attempted settlement that it can be contended that the defendant has waived his right to have an itemized account of the receipts and disbursements from January 1, 1892, to October 17, of the same year, which the evidence shows could have been made with tolerable accuracy. We think that it is our duty to give weight to this exhibit, which is offered as the only explanation for the balance struck at the date of the fire, and then correct the errors patent upon its face, rather than to utterly ignore it, and charge the plaintiff with all of the farm moneys shown to have been received by him during this period, and which are not otherwise accounted for or explained. We find, however, that in adopting the judgment of the District Court we carried into our judgment two errors contained in its adjustment. By the terms of the settlement of February 12, 1895, embodied in the written memorandum, the partnership wheat on hand was to be sold, and the deficiency for the year 1894 paid from it, and the balance was to belong to Emery. Here the terms of the settlement govern us. Lay has individually paid the deficiency for that year, amounting to $1,527.34. This he was entitled to have back from the sale of the wheat. The District Court gave him but half. He was also charged with one-half of the 1894 taxes. This was error. Viewed as a part of the farm expenses, — and the evidence shows that it was so considered in prior years, — it should have been paid from the sale of the wheat which Emery had taken possession of. These errors we correct by crediting the amount of these two items upon the judgment heretofore ordered. The judgment is thus reduced to $2,505.11, and, as so modified, will stand. The petition for rehearing is denied.
(79 N. W. Rep. 1053.)