M. C. TAYLOR v. FREDERICK L. CASTLE, ABRAHAM SELIGMAN, A. B. BRADY, A. B. DIBBLE, JAMES K. BYRNE, REUBEN LEACH, JOHH J. SYKES, GEORGE JOHNSON, JOHN VIGNON, HUGHES VIGNON, LEON MOL ROQUIER, E. G. WAITE, and DONALD FRASER, 42 Cal. 367

By the Court, Temple, J.: It may be a matter of regret that our Courts have gone to the extent they have in excepting mining partnerships from the general law of partnerships. . It is very well established now, however, that in such partnerships there is usually no delectus persones, and from this difference many peculiarities arise, the principal of which is that the partnership is not dissolved by the death of a partner, nor as a consequence of a sale of an interest by a partner to a stranger. As, therefore, the sale of an interest to Seligman did not dissolve the partnership, I think by his purchase he presumptively became a partner, although he took no

part in the management of the partnership affairs, and never held himself out to the world as a partner. The action is brought upon a contract, by which the plaintiff bound himself to erect a mill for the defendants. The contract is in writing, and purports to have been made by the defendants by their firm name, through James K Byrne, their Secretary. It was proven that the contract was authorized at a meeting of the company, and, after it had been signed by the Secretary, was ratified and approved in the same way.

There were no written regulations or bylaws adopted for the government of the company, but it was shown that they usually did business in this way. A majority of the shares at a meeting of the company authorized contracts to be made, and the minority always acquiesced. I think this shows a recognized and established usage on the part of the firm which must be taken as a part of the contract of partnership. The defendants Castle and Seligman pleaded a former recovery in bar, and, on the trial, introduced the judgment roll of a former action brought by the same plaintiff against the same defendants.

In his complaint in the first suit the plaintiff recited the fact of the contract to erect a mill for crushing rock, the performance of the contract on his part, and the non-payment of the contract price, and then averred an account stated between plaintiff and defendant, the ascertainment of a balance due, which was less than the contract price, and the promise on the part of defendants to pay that sum. The defendants, in their answer, denied specially each allegation of the complaint. Judgment was for the defendants, but it does not appear upon what grounds.

No evidence upon the subject was offered by either party, save the judgment roll, and the admission that the contract sued upon in this action was put in evidence upon the former trial. Unquestionably the judgment in the former action is well pleaded as a bar in this suit, provided the cause of action is the same, although the form of action has been changed.

The cause of action is said to he the same where the same evidence will support both actions; or, rather, the judgment in the former action will be a bar, provided the evidence necessary to sustain a judgment for the plaintiff in the present action would have authorized a judgment for the plaintiff in the former. The present action could he maintained upon proof of the contract, and performance on the part of plaintiff, and non-payment by defendants. This proof would not have sustained the former action.

That was founded on the account stated and the agreement to pay the balance ascertained, and not upon the original contract. (Carey v. P. & C. Petroleum Co. 33 Cal. 694.) Judgment and order affirmed: Mr. Justice Crockett did not participate in the foregoing decision.