(dissenting).
The findings of the trial court are fully sustained by the evidence, and a new trial should not, in my judgment, be granted upon an unimportant question of practice. Conceding that there was technical error in the respect pointed out in the opinion, it was error without prejudice.
The question whether the relations theretofore existing between the two firms were severed and terminated on December 1, 1900, was one of the principal issues litigated on the trial below, and for all practical purposes was fully presented by the pleadings. It is not important whether those relations were brought to an end by sale or by a dissolution of the copartnership-agreement; and the fact that the court below characterized it in its findings as a sale, the ground on which a reversal is ordered, is of no real importance. The evidence is abundant to sustain the trial court in finding that the relations between the two firms were then fully and finally terminated, and the rights of' all parties subsequently fully settled and adjusted; and, there being no substantial error in the record, the case should be affirmed.
For these reasons, I am unable to concur in the majority opinion.