#### Silver v. The St. Louis, Iron Mountain *&*Southern Railway Company, *Appellant.*

1. Settlement of Partnership Accounts : practice. When a partnership is created for a joint undertaking, each partner to collect certain proceeds, and the entire receipts to be shared upon a basis fixed in the agreement, any claim preferred by one against the other for a share of proceeds unfairly withheld, is the proper subject for the taking of an account, to ascertain the various items of receipt and disbursement by either partner, to compare them together, and strike the proper balance. But if the parties themselves have cast up the items, and agreed upon the state of the account and the resulting balance either way, there is no further account to be taken, unless upon a suggestion of fraud, mistake or omission, operating to falsify their conclusion; and the court cannot interfere with the result thus settled by tbe parties.*

*2.*Partnership: joint transaction : pleading : equity : reference : jury trial. Plaintiffs and defendant being both common carriers and owning connecting lines, made an agreement in relation to the transportation of two cargoes of goods over their lines, estimated the amount of freights to be collected by each and the profits to be realized on the whole transaction and struck a balance. Plaintiffs then paid defendant in advance what it was estimated would come into their hands by way of collection in excess of their share of the profits. One of the cargoes was subsequently destroyed, in consequence of which part of the estimated profits were never realized. Plaintiffs claiming that the enterprise was a partnership transaction, then sued to recover the amount of their advance and their share of the profits actually realized. The petition also contained a prayer for an accounting. The answer did not dispute the correctness of the several items which entered into the settlement or the accuracy of the balance ascertained, but denied the partnership and averred that defendant’s share in the undertaking consisted in the rendering of services to plaintiffs, and that the money paid defendant was paid for such services. *Held,*that the issues joined were properly triable by a jury, and that the case was not one for reference or triable by the court. Plaintiffs’ demands were of such a nature that they could have been recovered at common law under the counts for money had and received and account stated ; and the prayer for an accounting did not change their nature.

3. Contract: agent: evidence. Where one party to an alleged contract made by its agent denies the contract, and then introduces the *195agent to prove what the contract really was, such party will not be heard to deny the agent’s authority to make any contract whatever.

*Appeal from St. Louis Court of Appeals.*

Affirmed.

*Thoroughman & Pike*for appellant.

*Broadhead, Slapback & Haeussler*for respondents.

*

 This syllabus is taken from 5 Mo. App. Rep. 381.

Norton, J.

This cause was tried in the circuit court of St. Louis county, where plaintiffs obtained judgment for the sum of $4,078, which, on appeal to the St. Louis court of appeals, was affirmed, from which latter judgment defendant has appealed to this court. The 5th Mo. App. Rep. 881, contains a report of the case, wherein the facts upon which plaintiffs base their right of recovery are clearly stated and the grounds relied upon by defendant for a reversal of the judgment are fully considered; and after an examination of the points made here by defendant’s counsel, (which are the same as those that were made before the court of appeals,) and the authorities bearing upon them, we are satisfied of the correctness of‘the conclusion reached by that court, and with the reasons there given in support of it. Judgment affirmed-