D. ROBINSON v. C. ROBINSON, 42 Cal. 270

By the Court, Sprague, J.: From the record in this case, I understand the Court in its findings of fact, to state an account of the respective parties, plaintiff' and defendant, with a partnership or firm, composed of plaintiff and defendant as equal partners.

If I am correct in this, and assuming the second, third, fourth, fifth, sixth, seventh, and eighth items, credited to defendant in his account as stated, to have been advances by him on partnership account, and not advances by plaintiff' to him individually (as indicated by these items as entered in the account), then the account, as presented in the findings, discloses upon its face three manifest errors: First—In not charging plaintiff, in his account with the partnership, with the four hundred dollars received by him of the proceeds of the ranch; Second—In crediting defendant, in his account with the partnership, with two hundred dollars—the one half of plaintiff’s receipts from the ranch; and Third—In not crediting the defendant, in his said account, with one hundred and thirty-nine dollars and fifty cents expended by him for farming utensils used upon the ranch.

With these corrections the plaintiff’s account with the partnership would show advances on partnership accounts in excess of his receipts of partnership funds in the sum of one thousand six hundred and twenty dollars and fifty cents, and the defendant’s_account with the partnership would show advances by him on partnership account to the amount of one thousand eight hundred and sixty-two dollars and fifty cents, and no receipts; and, thus corrected, would show a balance in favor of defendant of two hundred and forty-two dollars, which he should receive from the proceeds of the sale of all the partnership assets after payment of the costs and expenses of this proceeding; and the residue of the proceeds of such sale should be equally divided between the plaintiff and defendant.

But from the entries in defendant’s account with the firm, as found in the record, it would appear that the second, third, fourth, fifth, sixth, seventh, and eighth items credited to him as advances on partnership account, were really advanced to plaintiff individually, and not for the use, or on account of the partnership.

With these seven items, and the item of two hundred dollars (half of plaintiff’s receipts from ranch), left out of defendant’s account with the firm, such account would show the aggregate of defendant’s advances on partnership accounts to be one thousand five hundred and fourteen dollars and fifty cents. It is, however, by no means clear from the record presented, that the Court below, in its findings and decree, proceeded upon the basis of a partnership between plaintiff and defendant in the purchase and conduct of the ranch.

There is no direct finding of the existence of such a partnership, nor is it found that the ranch was held and owned by the parties as tenants in common, and not as partners. This appeal is taken simply from the judgment upon the judgment roll alone, and by reason of errors apparent upon the record, as presented, the judgment must be reversed and the cause remanded for a restatement of account between the parties, or a new trial, as the Court below may direct. And it is so ordered. Rhodes, C. J., concurring specially: I concur in the judgment. Mr. Justice Crockett expressed no opinion.