Rankin v. Newman

Citations

• 107 Cal. 602
• 40 P. 1024
• 1895 Cal. LEXIS 796

Syllabus

<p>Estates of Deceased Persons—Settlement of Partnership—Action by Administrator of Surviving Partner—Findings—Appeal.—In an action by the administrator of the estate of a deceased partner with the will annexed against the surviving partners for an accounting and settlement of the partnership, and to set aside for fraud and collusion an alleged settlement between the surviving partner and the executor named in the will, when issue is joined upon whether the surviving partners in fact have settled the affairs of the partnership and accounted with the executor, and paid over to him such balance as was due in right of the decedent, upon appeal from a judgment in favor of the surviving partners, where the evidence is not returned, the judgment conclusively established, for the purposes of the appeal, that defendants have accounted with the executor and paid over to him as the law directs» except in so far as the pleadings admit a balance still due.</p> <p>Id.—Pleading of Probative Facts—Findings.—Matters of evidence improperly injected into the pleadings are not required to be found by the court, and do not qualify the ultimate finding of fact, whether made expressly or conclusively implied.</p> <p>Id.—Admission of Mistake in Settlement.—Where the answer admits an unintentional mistake in the settlement pleaded, occurring in the preparation of the balance sheet on which the settlement was founded, and that the payments made to the estate were less than they should have been by a specified sum, such admission made in the answer is a limitation upon the denial of the allegation that the affairs of the partnership remain unsettled, and entitles plaintiff to judgment for the sum admitted to be due by reason of the mistake; and it is immaterial that the error prejudicial to the estate arose from the mistake admitted by the defendants, and not from fraud charged by the plaintiff;' nor is it material that the plaintiff had declined to accept the correction admitted by the answ