No. 2,148.

#### JOHN J. FULTON, Respondent, *v.*JAMES *W. COX, et al.*Appellants.

Dismissal op Appeal pbom Judgment. — The dismissal of an appeal from a judgment is not a bar to an appeal from a subsequent order refusing a motion for a new trial.

Pbacticb. — Misioindeb ok Nonjoindek op Pabites. — Motion to Amend. — A denial by the Court, on the objection of the defendant, of a motion to amend the complaint by substituting a proper party for one improperly sued, will be considered as made at defendant’s instance and with his consent, and he cannot subsequently complain of' a misjoinder or non-joinder of parties.

Pkactice on Appeal. — Statement op Account by Coubt Commissioneb. Where the principles upon which an account is to be stated had been determined by the Court before the Commissioner was ordered to mate the statement, the action of the Court cannot be reviewed in the absence of the evidence upon which the principles were determined.

Appeal from the District Court of tbe Fourth District, City and County of San Francisco,

Tbe complaint was for an accounting and dissolution of copartnership.

On December 28tb, 1859, tbe firm of Cox, Francis & Co. were doing business as commission merchants, and as dealers in miscellaneous trade in San Francisco. Fulton, tbe plaintiff, was carrying on a tannery and manufacturing leather belting and hose. Plaintiff alleges that Cox, Francis *&*Co. on that day entered into a verbal agreement with *102bim, to receive and sell bis leather belting and boss at retail, and make advances to bim to carry on bis business, for wbicb tbe firm of C. 3?. *&*Co. were to receive commissions to amount of twenty per cent, on all sales, and were to be allowed interest at tbe rate of two per cent, per month on advances; that tbe arrangement was one of copartnership with bim; and that tbe books and accounts were to be kept and made out in tbe name of Cox, Francis *&*Co. Tbe complaint then specially alleges tbe amount and character of tbe business transactions, and that about February *1*st, 1861, tbe firm of Cox, Francis & Co. was merged in a new firm, styled Cox, Willeutt *&*Co., wbicb latter received tbe stock unsold, and continued tbe business down to October 15th, 1861, and then refused to make further advances.

It is alleged in tbe complaint, that tbe firm of Cox, Francis *&*Co. was composed of J. W. Cox and J. W. Francis; and Cox, Willeutt *&*Co. of these two, together with Will-eutt.

Tbe defendant, J. W. Francis, answered separately and denied that be ever was, at any time, a member of either of tbe firms mentioned; and alleged that tbe firm of Cox, Francis *&*Co. was composed solely of Cox and D. B. Francis, and that of Cox, Willeutt & Co. was composed solely of defendants Cox and Willeutt.

Defendants Cox and Willeutt answered, and denied specifically each allegation of tbe complaint; and set up that Cox, Francis *&*Co. and Cox, Willeutt & Co., in all tbe dealings connected with tbe receipt and sale of tbe leather belting and hose, acted as commission merchants, for an agreed commission of twenty per cent, on all sales; and two per cent, per month interest payable monthly, on all advances made to Fulton to carry on bis business, and also set up tbe misjoinder of J. W. Francis, and nonjoinder of D. B. Francis, as defendant, and aver that tbe firm of Cox, Francis *&*Co. was composed solely of Cox and D. B. Francis; and that of Cox, Willeutt *&*Co. of Cox and Willeutt.

Tbe cause was referred to tbe Court Commissioner to take tbe proofs, *wbo stated tbe accounts, and made report, *103allowing to tbe plaintiff and defendant interest at tbe rate of ten per cent, per annum upon tbe monthly balances as tbey were found for or against them respectively, at tbe end of each month, and allowing no commissions to tbe defendants upon sales made by them or to them after tbe month of November, 1866; but upon all sales made *prior*to and inclusive of said month, allowing commissions at tbe rate of twenty per cent, of tbe gross amount of sales, with tbe exception of a few comparatively small items.

Tbe Court adopted tbe report, and rendered judgment in favor of plaintiff against defendants Cox and ’Willcutt, plaintiff waiving judgment against defendant J. W. Francis.

Defendants appealed from tbe judgment, and tbe appeal was dismissed for want of prosecution. Subsequently defendant’s motion for a now trial was denied; and from tbe order denying said motion, as well as from tbe judgment, this appeal is taken,

Tbe other facts are stated in tbe opinion.

*W. 3.*Patterson, for Appellants.

*First*— The answer of a misjoinder, tendered a material issue, and one which tbe Court was bound to adjudge upon according to tbe fact as found.

In a bill filed for a partnership accounting, a defendant may plead in bar that be is not a partner. (Collyer on Partnerships, § 370; Daniels’ Cb’y Pr. § 700; Prac. Act, *?¿*40, subdiv. 4; *Id.*§ 44-45..

*Second*— -The nonjoinder of D. B. Francis was also a material issue, upon which tbe Court was bound to pronounce when tbe fact was found. And upon the fact as found, entitled tbe defendants to judgment upon a final submission of tbe case. (Collyer on Partnerships, § 861, § 368; Prac. Act, § 13, § 40, *§*44, *§*45.; *Wooster*v. *Oham-berlain,*28 Barb. 602.; *Sweet*v. *Tuttle,*4 Kernan, 465; *Sloan*v. *3o6ker,*13 Barb. 542.) ' *

*104*Third*— D. B. Francis was a necessary party to tbe complete determination of tbe controversy, and tbe plaintiff could ndt bave judgment without making bim a party. *{Van Epps*v. *Fan Fumen,*4 Paige, 64; *Shavers. Brainerd,*29 Barb. 25; Practice Act, § 17.)

Where an action is brought to enforce a liability, both of tbe partnership property and of tbe partners individually, all tbe members are necessary parties; and in case of tbe death of a partner, bis personal representatives are necessary parties. *(Voorhies*v. *Baxter,*1 Abbott, 44^45.)

To a bill, for an account of partnership transactions, all tbe partners should, be parties; and so for a share in a partnership adventure, all tbe partners having shares, must be parties. (Collyer on Partnerships, § 361, and authorities cited.)

If a partner becomes bankrupt pending suit, his assignee must be brought in. If he die his personal representatives must be substituted. (Id. § 362.)

*Fourth*— The alleged error in rejecting commissions is based on the fact of the defendants being held as dealers and co-partners, carrying on a retail trade, and held for the retail price of the goods under the alleged agreement in the complaint; and at the same time deprived of their commissions, which were secured in the very agreement that is being enforced against them.

The error in the statement of the interest account is equally manifest. Two per cent, interest per month was expressly reserved in the agreement and admitted in the complaint; yet the commissioner states the accounts allowing to defendants only ten per cent, interest per annum.

*Ferny B. Janes,*for Respondent.

*First*— The dismissal of 'an appeal, is an affirmance of the judgment, and a bar to any other appeal from the judgment : *{Karth*v. *Light,*15 Cal. 324/ *Rowland*v. *Kreynhager,*24 Id. 52; *Chamberlain*v. *Beed,*16 Id. 207; Rules Supreme Court, Rule 3.) It is also a bar to any other appeal in the case.

*105*Second*— Appellants opposed plaintiff’s motion to amend and thus cure all possible error on these issues at the trial, and before final judgment.

A party cannot complain of an order as erroneous which was made with his consent. *{Mott*v. *Smith,*16 Cal. 533; *Murlmlh*y. *Sessions,*9 Id. 277; *Brotherton*y. *Hart,*11 Id. 405; *Winter*y. *Bose,*32 Ala. 447; *Hopldns*y. *JDonaho,*4 Fox 336. See also text of opinion in *Olafiin*y. *Farmer’s Bank,*36 Barb. 540.)

Bhodes, 0. J.,

delivered the opinion of the Court, Sprague, J., and Temple, J., concurring:

The dismissal of the appeal from the judgment, under Buie 3 of this Court, is not a bar to an appeal from an order, subsequently made, refusing the defendant’s motion for a new trial.

The answer tendered the issue of a misjoinder of J. W. Francis, as a defendant, and of the nonjoinder as a defendant of D. B. Francis. The Court found that J. W. Francis was not, and that I). B. Francis was, a member of the firm of Cox, Francis *&*Co. The plaintiff thereupon offered to amend the complaint by striking out the name of J. W. Francis and adding the name of D. B. Francis as a defendant, but the motion was opposed by the defendants and was denied by the Court. We are not apprised of the grounds of the objection, but whatever they may have been, it is clear that the defendants have no cause to complain of the misjoinder or the nonjoinder, for leave to amend the complaint was denied on their objection. The order will be regarded as having been made at their instance 'and with their consent.

The defendants insist that they should have been allowed interest on their advances, at the rate of two per cent, per month, and commissions on their sales at the rate of twenty per cent. The complaint states that the agreement to pay interest at two per cent, per month was verbal, and the answer does not allege that the agreement was in writing. The statute in force at that time, did not give effect to an *106agreement for a greater rate than ten per cent, per annum, unless it was made in writing. "Whether interest on the advances was allowed at the rate of ten per cent, per annum, for that or some other reason, cannot be ascertained from the record in this Court. The principles upon which the account between the parties was to be stated, had been determined, before the Commissioner was ordered to state the account; but the evidence on which the Court acted is not presented in the record. As the alleged error occurred at that stage of the case, the action of the Court cannot be reviewed in the absence of the evidence upon which the principles were determined, upon which the account was required to be stated.

The question as to the commissions, occupies the same position as that in respect to the interest. The complaint avers that commissions at the rate of twenty per cent, were to be allowed on the sales at retail, while the answer claims such commissions on all sales; but, without having the evidence before us, we cannot ascertain what the agreement was, nor whether any sales were made at retail, after the time for which commissions were allowed to the defendants.

Judgment affirmed.

Wallace, J., being disqualified, did not sit in the case.

Crockett, J., expressed no opinion.