After tbis appeal was docketed in tbis Court, and before it was called for bearing in its regular order, tbe defendant, W. R. Foreman, died. His executor, American Trust Company, voluntarily appeared in tbis Court by its counsel and moved that it be made a party defendant in tbe action, in its representative capacity. Tbe motion was allowed in accordance witb tbe Rules of Practice in tbis Court. Rule 37.
Tbe testimony of tbe witnesses who testified at tbe trial before tbe referee was reduced to writing and filed in tbe record, as required by statute. C. S., 577. Tbis testimony, together witb tbe exhibits offered by both tbe plaintiff and tbe defendant at tbe trial before tbe referee, was tbe only evidence submitted to tbe jury, in accordance witb tbe provisions of tbe statute. C. S., 573. Tbe issues appearing in tbe record were answered by tbe jury from tbis evidence, under tbe charge of tbe court. Tbe referee found that tbe net profits of tbe partnership, from its commencement in August, 1923, to its dissolution on 1 January, 1930, were $8,903.60, while tbe jury found from tbe same evidence that tbe net profits of tbe partnership during its existence were $17,000.70. On an accounting upon tbe findings by tbe referee tbe plaintiff is indebted to tbe defendant in tbe sum of $3,574.45, while on an accounting upon tbe verdict of tbe jury tbe defendant is indebted to tbe plaintiff in tbe sum of $5,882.35. Tbis wide discrepancy is due in part, we think, to tbe failure of tbe judge in bis charge to tbe jury to comply witb tbe provisions of O. S., 564. An examination of tbe charge set out in tbe transcript filed in tbis Court shows that it was not in compliance witb tbe provisions of tbe statute, in that tbe judge failed to state in a plain and correct manner tbe evidence given in tbe case, and failed to declare and explain tbe law arising on tbe evidence. No reference is made in tbe charge to tbe testimony of tbe plaintiff that be bad received from tbe partnership tbe sum of $4,400, for bis personal expenses and not for expenses incurred by him in prosecuting tbe business of tbe partnership. Conceding that tbe terms of tbe partnership agreement were as contended *249by the plaintiff and as found by the jury, this sum at least should have been deducted from plaintiff’s share of the net profits. The defendant is entitled to a new trial for the error of the court in failing to comply in its charge to the jury with the provisions of 0. S., 564. It is so ordered.
New trial.