1 It is agreed, in argument, that the court can no more than approximate justice in the case, because of the condition of the record as to evidence on which to base conclusions. Appellant claims that there is neither an issue nor evidence that will sustain a finding that defendant was, when he took the farm, to become the owner of the personal property thereon. It is true that the defendant makes no such claim in his pleadings, and the testimony to that effect is remarkably slight. From the judgment entry it is not easy, if possible, to know what the conclusion was in that respect, The aggregate of defendant’s counter-claim is nearly twenty thousand dollars. Plaintiff concedes, in -his pleading, that he has not data or information from which to know the amount to which he would be entitled under his claim as to occupancy, and hence he asks an accounting to show. The defendant asks, if the partnership is not found, that his counter-claim be established, and that he have judgment for any excess over the rental value of the farm. The partnership was specially found not to exist. The judgment evidently gives all the property on hand, or its proceeds in the hands of the receiver, to the defendant in the general accounting, and requires him to pay five hundred dollars. In the “decree and order” in this case, after the finding that “no partnership existed between plaintiff and defendant,” is the following: “But after considering all the items of charges and claims made by plaintiff in his original petition, and the amendments thereto, and all the defenses and counter-claims made by defendant in his answer and the amendments thereto, the court finds that, on a general accounting of all such matters, there is due from defendant to plaintiff, the sum of five hundred dollars.” This indicates that the conclusion *103involves all the claims of both parties, and that, with proper credits on all such claims, five hundred dollars are due the plaintiff. If this judgment is in satisfaction of the claim for improvements on the farm, we are able to concur in the result, for it likely approximates, as nearly as can well be, a just result. If it does not include the claim for improvements, we could not concur, for the decree would be clearly unjust. The further judgment entry in this case gives rise to the doubt we have indicated. It is as follows: “And it is, therefore, finally ordered and adjudged and decreed, that the plaintiff have and recover of the defendant the said sum of five hundred dollars; that the injunction in this case be dissolved as to the one thousand seven hundred dollar judgment in favor of defendant against plaintiff, entered at the November term, 1892, of this court, in case No. 7,902; and that said injunction be made perpetual as to the disposition of personal property until this five hundred dollar judgment is satisfied, and, on the payment or satisfaction of the said five hundred dollar judgment in this case, the injunction as to said personal property is to be dissolved, and E. W. Atkins, the receiver, is then to turn over to the defendant all the property in his hands as receiver, and the receivership is then to terminate. It is further ordered and adjudged, that each party pay one-half the costs in this case. Judgment for costs accordingly.”
The record leaves us somewhat in doubt as to the effect of this entry as to the injunction, and whether or not it is intended that the one 'thousand seven hundred dollar allowance in the other suit is to be collected. If so, then that claim has been twice adj udicated, and, with our conclusion in this case, twice allowed. On the other appeal, we reversed the district court on the allowance of the claim for improvements, but only because there was no issue to justify such an *104allowance; and, to protect the rights of defendant, the reversal and judgment were without prejudice to the formation of issues in that case and their determination. The order in that case was after the appeal of this case, but before its submission to us, and without our knowledge of it. Because of this situation, unknown to the parties when this case was submitted, we are led to consider some matters not contemplated at the submission, but absolutely essential to a just conclusion, and properly within the record. Our conclusion is that the judgment should be affirmed as to the allowance of the five hundred dollars; and, because of the inference that the judgment below was not intended as a bar to a further recovery for improvements on the farm, it should be modified to that effect. This order is available to the parties in adjusting the other suit as to the same claim. Defendant will pay the costs of this appeal. — Modieed and aeeirmed.
Thursday, December 10,1896. Milton Remley and Wheeler & Moffitt for appellant. T. B. Manley and 8. M. Fairall for appellee.