
    George Leach v. James T. Church, Administrator of Tuenis A. Kagy, deceased.
    Upon the trial of an issue of fact, a special verdict should find facts to which the law gives a determinate effect, conclusive of the issue.
    No judgment can he rendered upon a finding of facts which are in the nature of evidence only, and are not, in law, conclusive upon the question at issue.
    Error to the district court of Fairfield county.
    The original action was brought, in the court of common pleas, by the plaintiff in error against the defendant in error, as the administrator of Tuenis A. Kagy, deceased, and one Aaron A. Kagy, as the surviving partner' of the deceased, to recover a balance claimed to be due to the plaintiff in error for feeding and fattening certain stock hogs of the late firm of A. A. & T. A. Kagy (the said decedent and the said survivor having constituted said firm), under a contract between the plaintiff in error and the firm.
    The case was tried in the district court by the court, on petition, and answer of said administrator, and testimony. Aaron A. Kagy was in default for answer or demurrer.
    The controlling issue made by petition and answer was whether a note of the amount due to the plaintiff in error *and given to him after the decedent’s death by the survivor, Aaron A. Kagy, who alone executed the note, was given and accepted as a discharge and in satisfaction of the claim against the late firm. The court entered their finding of facts, and judgment as follows : “And as to the said issue joined between the said plaintiff and the said defendant, James T. Church, as administrator of the said Tuenis A. Kagy, the court here find that the said Aaron A. Kagy and Tuenis A. Kagy were partners, and as such partners entered into the contract in said petition of said plaintiff set forth ánd described, with the plaintiff; and that on the 9th day of April, 1853, and after the making and entering into said contract with said plaintiff as aforesaid, the said firm was dissolved by an agreement in writing in the words and figures following: 1 Dissolved partnership. This day the firm of A. A. & T. A. Kagy, by mutual agreement, have agreed to separate. The firm was A. A. Kagy and T. A. Kagy alone, in partnership in all the stock bought in Ohio and driven East. They have stock in Illinois, of which I. L. Wilson has one-half. These names constitute the firm. A. A. Kagy agrees to take all the stock now on hand and contracted for at the first cost; also, the contracts at the contract price. He also agrees to pay all the bank debts; also, all the debts owing by the firm, of all descriptions; and release T. A. Kagy from all trouble and responsibility in all cases so far as the firm stock business is concerned, done in Ohio or driven East—that is, the stock that is on the road, and the stock to start on the road. And T. A. Kagy, for his part, agrees to take the one-half of the stock owned by A. A. Kagy and T. A. Kagy and I. L. Wilson, and said Wilson to retain his one-half as before. T. A. Kagy is to pay A. A. Kagy the money that is now invested in the Illinois stock; and T. A. Kagy agrees to go to Now York and stay to see to the sale of some of the stock for A. A. Kagy. This agreement being made this 9th day of April, 1853, we have hereunto set *our hands and seals.' A. A. Kagy; T. A. Kagy.’ And the court here further find, that the said plaintiff had notice of said dissolution and the terms thereof. The court here further find, that said firm, composed of the said A. A. Kagy and T. A. Kagy, did, during the existence of said firm, enter into the contract with said plaintiff as is alleged and set forth in the petition of said plaintiff; and the court also find, that said plaintiff fully performed all the stipulations of said contract by him agreed to bo performed, and that he delivered, at the time and place specified by said contract, to the said A. A. Kagy, as surviving partner, hogs to the amount of $729.89, in accordance with the terms of his contract with said firm. And the court here further find, that the said plaintiff, having such notice of said dissolution, and the terms thereof, did, on the 16th day of January, 1854, settle with and adjust with said A. A. Kagy, the account and dealings of him, the said plaintiff, with the said firm; and on such settlement the said A. A. Kagy gave his promissory note to the said plaintiff for the amount so found due from the said firm to the said plaintiff, which note was in the words and figures following, to wit: ‘ Due George Leach, or order, $729.89. Value received. A. A. Kagy. Credit on the above note, $72.57.’ And the said plaintiff received said note .and has retained and kept the same up to the time of commencing this action. And the court further find, that at the giving and receiving of said note, nothing was said by plaintiff and said A. A. Kagy whether the said note was or was not given and received as satisfaction and discharge of the said indebtedness so due from said firm to said plaintiff; but that all that was said or done by the said plaintiff and the said A. A. Kagy at the time of the giving and receiving of said note as aforesaid, or at any other time, was, that the said A. A. Kagy said to the plaintiff, that said note was given to show the balance due to said plaintiff; and that the said A. A. Kagy said he had money ^enough to pay, and would pay, it in a few days; and plaintiff afterward asked A. A. Kagy for the same, but did not'got it. The court further find, that said note still remains unpaid, and that said plaintiff brought it into court and offered to cancel and give up the same. And the court further find, that if the said plaintiff is, on these facts, entitled to recover against the said James T. Church, as administrator of the said T. A. Kagy, deceased, that there is due to the plaintiff the sum of $759.51. And the court being of opinion that, on the facts, the debt due from said firm was discharged by the taking of said note as aforesaid,” rendered judgment against the plaintiff for costs.
    To all which the plaintiff excepted, and to reverse this judgment, filed a petition in error in this court.
    P. Van Trump, for plaintiff in error.
    
      Martin <& Schleich, for defendant in error.
   Scott, J.

No question is j>resented in this case as to the weight of evidence. The record does not embody the evidence, nor was there a motion for a new trial.

But the case comes before us on what purports to be a finding of the facts by the court, in the nature of a special verdict.

The main question presented by the pleadings was, whether a certain note, executed by A. A. Kagy alone, and given by him to the plaintiff, was so given and accepted by the plaintiff, in satisfaction and discharge of a pre-existing debt due to the plaintiff from the firm of A. A. and T. A. Kagy. This was a question of fact, and while it remained open, no final judgment, upon the merits, could properly be rendered in the case. But instead of finding either way upon this question of fact, the district court found that certain things were done and said, by and between the parties, which might tend, more *or less strongly, to prove this main point in the case. A certain amount of evidence, tending, perhaps, to prove a fact, was found, without any finding upon the fact itself. Tho 'question of law, as to the judgment to be rendered, could not, as we have said, be raised, until this question of fact was determined. And the deduction or inference to be drawn from the evidence thus found by the court, is a conclusion of fact—not of law. To the facts thus found, the law has not, by repeated adjudications given a fixed determinate effect. They are still matter of evidence only, proper to be weighed and considered by a jury, but not, in law, conclusive upon the issue.

The special finding of facts being thus imperfect, the judgment founded thereon will be reversed, and the cause remanded to the district court for a new trial.

Brinkerhorr, 0. J., and Sutlirr, Peck, and G-holson, JJ., concurred.  