Dettering

after stating the case as above, delivered the opinion of the court.

It is earnestly insisted that the court erred in denying the motion of the appellant, made at the close of the appellee’s testimony, to dismiss the suit on the ground that 'the matter involved therein had been adjudicated in the action at law in which the appellee had waived his claim ■for damages. We find no merit in the contention. The appellee had brought the present suit for an accounting. *617 When the appellant answered, denying his title, he found it necessary to institute the .action at law to obtain an ad-, judication of his title. When that action came on for trial he chose to withdraw from the issues therein his demand for damages, preferring to litigate the same in the present suit which was then pending. Although the language of counsel for the appellee was that the latter then waived all damages against the appellant, it was not intended to 'be a waiver of the damages and was not so understood by the appellant. This is made clear by the fact that the appellant resisted the waiver of the damages, he evidently preferring to try the question of the damages in that action rather than in the suit in…