
    Perley M. Green, appellant and cross-appellee, v. Axtell Lumber Company et al., appellees: Hans Hansen, appellee and cross-appellee: Fred A. Harrison, appellee and cross-appellant.
    Filed March 14, 1928.
    No. 25302.
    
      
      M. D. King and J. L. McPheely, for appellant.
    
      Hainer, Craft, Edgerton & Fraizer, James & Danly, C. P. Anderbery and J. H. Robb, contra.
    
    Heard before Goss, C. J., Rose, Dean, Good, Eberly and Howell, JJ.
   Rose, J.

This is a suit in equity begun by Perley M. Green to require defendants to account as former partners in the lumber business. Among other defenses there was a plea of accord and satisfaction as to all matters in controversy. Upon a trial of the issues the suit was dismissed and plaintiff appealed.

There was no error in the dismissal. It was conclusively shown by the evidence that plaintiff had deliberately accepted and cashed a check knowing it was tendered in full settlement and satisfaction of the matters in controversy.

Error, however, is apparent in that part of the decree resulting in a judgment for $139 in favor of defendant Hansen and against defendant Harrison. This item was not within the issues raised by the pleadings and was not' submitted in any form for adjudication. The suit having been properly dismissed, there was also error in that part of the decree requiring defendant Harrison to pay the costs of suit. The dismissal is affirmed at the costs of plaintiff in both courts and the judgment against defendant Harrison for $139 and costs is reversed.

Affirmed in part, and reversed in part.  