pating in the management of said business and the partnership property, etc., etc., and for the appointment of a receiver, pendente lite, to take possession of all the partnership property and business, etc.

Each of the defendants filed demurrers, both general and special, to the complaint. Among the grounds specially urged against the complaint are those of misjoinder of parties defendant and misjoinder of causes of action and that it is ambiguous and uncertain.

The demurrers having been overruled, each of the defendants answered the complaint, specifically denying the averments thereof and charging, as do the special demurrers, a misjoinder of parties defendant, misjoinder of causes of action, and that the averments of the complaint are ambiguous and uncertain.

The court found that a copartnership agreement was entered into by and between the plaintiff and the defendant, John J. Shoo, at the time and for the purposes set out in the complaint; that, in pursuance of said agreement, they, as equal partners, entered into and took possession of the premises described in the complaint, and proceeded to conduct and maintain thereon, as equal partners, the saloon and cigar business and billiard hall, and have ever since conducted and maintained thereon such business and billiard hall; that, in the name of the said defendant, Shoo, they acquired, as equal partners, and for partnership uses, the real and personal property described in the complaint; that, at the time mentioned in the complaint, the defendant, John J. Shoo, "against the will of plaintiff, wholly excluded him from said partnership property and business and from any participation in any of the affairs of said partnership, and has ever since kept him wholly excluded therefrom, and has ever since refused to account to him for or concerning anything relative to said partnership"; that profits from said business and rents from portions of the real property purchased by them as described have been derived and received, and that a portion of the profits and rents so derived and received have been expended in remodeling and repairing buildings standing on said real property and in making payments on the interest on the unpaid purchase price and on the principal thereof; that the plaintiff and said Shoo have each received and retained a share of the profits of said

business, "but unequal in amount"; that there are debts outstanding against said partnership, and "that since the exclusion of plaintiff from said business, the defendant, John J. Shoo, has had the management and control of the partnership business and property and has received and paid out sums of money in connection therewith."

As to the interest of the defendant, Herrick, in this controversy, the court finds that money had been loaned by him and applied on account of the purchase price of the partnership real property "and the legal title to said property has been transferred to said Herrick as security for the payment of said loan."

The court, as a conclusion of law from said findings, determines "that an accounting is necessary between plaintiff and the defendant, John J. Shoo, covering all of the property and business found to exist between them from the commencement thereof."

The decree, which is characterized in the transcript as an "Interlocutory Decree," followed the findings and the conclusion of law, but required and provided for the appointment of and named a referee, to whom was committed the power and the duty of taking a full accounting of all of the copartnership dealings and transactions between the plaintiff and the said defendant, John J. Shoo, as described in the complaint, and postponed the making of further findings and of a final decree "until the coming in and settlement of the referee's report."

After the filing of the report of the referee, the court adopted the same and made it a part of the findings theretofore made, and upon the findings so made, and the conclusions of law educed therefrom, made and entered its final decree, adjudging the plaintiff and the defendant, John J. Shoo, to be partners, as set forth in the complaint, and adjusting the matter of the accounting of their partnership business and property in conformity with the findings and report of the referee.

The defendant appealed from the "interlocutory decree" and from an order denying a motion for a new trial after the entry of said decree. After the rendition and entry of the final decree, the defendants moved for a new trial, which

20 Cal. App.-28

motion was denied, and they then noticed and took an appeal from the order denying said motion.

The defendants contend that the complaint does not state facts sufficient to constitute a cause of action for the following reasons, viz.: 1. That it is not therein or thereby shown that the plaintiff and the defendant, John J. Shoo, entered into or formed a partnership, and in this connection it is contended that the mere allegation that they "entered into a parol contract" involves nothing more than the statement of a legal conclusion, and that the facts pleaded disclose a contract of employment, only, whereby the plaintiff was to render the services alleged in consideration of one-half of the profits of the business referred to in the complaint; 2. That the contract pleaded in the complaint is void under the statute of frauds in that it involves "an agreement that by its terms is not to be performed within a year from the making thereof." (Civ. Code, sec. 1624; Code Civ. Proc., sec. 1973); 3. That, as to the real property which it is alleged the parties agreed to purchase as partnership property, the contract is void under the terms of section 1624 of the Civil Code.

In addition to the general objections thus urged against the complaint, the points, arising under the special demurrer, that there is a misjoinder of parties defendant, a misjoinder of causes of action and that the complaint is ambiguous and uncertain are also pressed by the defendant, John J. Shoo, and discussed in the briefs.

The further complaint is made of certain rulings of the court in the allowance and rejection of certain testimony.

1. A partnership is defined by section 2395 of our Civil Code as follows: "The association of two or more persons for the purpose of carrying on business together, and dividing the profits between them." The complaint, in our opinion, clearly discloses a contract by which the plaintiff and John J. Shoo associated themselves together for the purpose of carrying on and conducting the business therein mentioned as partners. The complaint, as has already been shown, reads: "That the plaintiff and said John J. Shoo entered into a parol contract of copartnership whereby they agreed to associate themselves together for the purpose," etc. Again, in the second paragraph, it is alleged that said contract also involved a covenant whereby they agreed to obtain an option,

in the name of the defendant, Shoo, to purchase in the city of Coalinga certain real property, on which were located buildings appropriate "for the business which plaintiff and defendant had agreed, as hereinabove stated, to carry on." In the same paragraph it is averred that, the sum of twenty thousand dollars having been paid to the vendor upon the acceptance of the option from money borrowed by the said defendant, it was agreed that the unpaid principal and interest should be paid from the profits and the rents derived from said business and said property, and that when the same was fully paid, then the plaintiff should pay to the defendant one-half of the said twenty thousand dollars used in making the first payment as aforesaid and one-half of any interest which said defendant might have paid thereon, and that said real property "should be and become part of the partnership assets." These averments, obviously, go much further than the statement of the mere conclusion that the parties formed themselves into a copartnership. They show, as we have declared, that they agreed to and did associate themselves together as partners; that they jointly purchased certain real and personal property for carrying on the business which they had associated themselves together as partners to carry on; that, as partners, they jointly entered into and took possession of said property; that they agreed to share equally the profits of said business. But counsel appear to assume that the averment that the real property "should be and become partnership assets" means that such property should not become such until it was fully paid for. We cannot agree with that construction. Interpreted by the light of the complaint as a whole, that averment clearly and unmistakably means that the real property, upon its acquisition by the plaintiff and Shoo under the circumstances indicated by the complaint, should then "be and become partnership asIn this view of the complaint, and particularly of the averment just referred to, there can be no difficulty in distinguishing from the present case the cases cited by appellants, and in which it was held that the complaints disclosed by their averments not a contract of copartnership (the theory upon which they were drafted) but a mere contract of employment, whereby the plaintiff was employed by the defendant to perform services in consideration of an equal

share with his employer in the profits of the business upon which such services were to be bestowed. We will examine some of the cases referred to. In Stone v. Bancroft, 112 Cal. 652, [44 Pac. 1069], the plaintiff was employed at a monthly salary to manage the business of the defendant, and in addition thereto the defendant agreed to give the plaintiff a onetenth interest in said business upon the condition that the plaintiff would devote his whole time and best energies, for a period of not less than ten years from the date of the agreement, to the carrying on of said business. The plaintiff quit his connection with and management of the business before the expiration of the time during which he was to manage the same as a condition precedent to the vesting in him of the one-tenth interest therein. The supreme court very properly held that the plaintiff never acquired a vested interest in the business because of the failure of the contingency upon which his title was to vest.

In Coward v. Clanton, 122 Cal. 451, [55 Pac. 147], the complaint alleged that the defendant agreed with the plaintiff to purchase with his own funds real estate and that the plaintiff, for selling the same in subdivided tracts, should receive onehalf the profits of all sales so made. It was held, as very clearly the complaint revealed, that the agreement pleaded was one whereby the defendant employed the plaintiff to perform the stipulated services for certain specified compensation.

Lyden v. Spohn-Patrick Co., 155 Cal. 177, [100 Pac. 236], was where the plaintiff and the defendant entered into a contract whereby the former hired his services to the latter in carrying on and conducting for the defendant the canned salmon business and for which services it was agreed that the plaintiff should receive a salary of two hundred dollars per month and, additionally, one-half the net profits of said business. The company had the right to reject sales and to determine the matter of the credit of parties to whom sales were made. The agreement was to continue for six months from its date, "and was to continue thereafter, in consecutive periods of six months each, for three years from its date, if at the end of the first six months and each successive six months, respectively, there should be no net loss to the company." It was further agreed that if either party failed to carry out any portion of the agreement the same should for