The record-union., 1891-01-13
[Fi,ed January 5.1ao1.l
We concur:
THORNTON, J.
MCFARLAND, !

IL,fEt
county--V. A. Gregg, Judge.
For appellant. William Shipscy.
For respondent, W. B. Dilard
DEPARTMENT TWO.
EZRA cARrESTER, Respondent, -
A. r. HATHAWAY, Appellant.
Plaintiff brought this action to dissolve a
partnership, for an accounting, and to estab-
lish his interest in certain lands acquired as
partners, and obtained Il Judgment III his
favor Defendant appeals from the judgment,
also from an order denying him new trial.
The main facts, as shown by the findings,
may be briefly stated as follows:
About November 15, 1855, the plaintiff.
who was then County Surveyor of San Luis
Obispo county, had special knowledge of the
location and quality OF certain large tracts OF
vacant Government land on the Carisa plains
in that county, then offered at private sale for
81 25 per acre. but he was without means to
purchase any of the land.
On or about that date he and the defendant,
who was possessed of both means and credit
entered into verbal agreement whereby the
plaintiff, upon his part, agreed to assist in
pointing out, locating, and entering in the
name of the defendant, such portions of the
lands as the latter might deem IL advisable to
purchase for their joint benefit; and the de-
fendant, upon his part, agreed, in considera-
ton thereof TO furnish q team and wagon for
the inspection of the lands, to purchase the
lands of the Government, and furnish the
necessary money therefor, and when so pui-
chased to take charge of and sell the same for
cash at a reasonable profit, as opportunities
might occur; and after each sale TO deduct
from the proceeds of each sale the price paid to
the Government for the land sold and pay
over promptly to the plaintiff one-half of the
remainder.
Between the date of the agreement and the
9Th day of June, 1886, the plaintiff and the
defendant had pursuant to the agreement ac-
quired ), 90 acres of land, the title to which
stood in the name OF the defendant. Upon the
latter date defendant gave plaintiff Il written
acknowledgment to the effect that the de
fendant had acquired title from the United
States Government 10 3, 1863 acres OF land. and
that 1t was understood and agreed that the
plaintiff was to share equally with the defend
ant in the net profits of the land.
Thereafter, about August 5. 1856, and pur-
suant to the same agreement, the defendant
acquired title to 64O acres of land
On April IL, 1887, while all the lands were
still held under the agreement, the defendant
sold and conveyed to one A. r. Taylor n near
relative of the defendant, 937 acres of land
for the sum of 81 per acre. OF this price he
received but one dollar per acre, and volun-
tarily, but without the plaintiffs consent, and
contrary to their agreement, gave credit TO the
grantee for the remainder of the purchase
price, which still remains unpaid, the defend
ant not having taken steps to collect it.
Had this latter amount been collected the
net proceeds of the sale, after deducting the
sum of 81 25 per acre paid to the Govern
ment, would have been the sum of Sl,445,
one-half of which the plaintiff would have
been entitled to. Defendant, however, paid
him but S125 on account which the plaintiff
admitted in his complaint.
l.,
sequently, the plaintiff demanded of the de.
fendGnt an account of the lands sold and the
money received therefor, and also the paw
nent to him OF his share of the net proceeds
of the sale; but the defendant failed and re-
fused to render him any account, or to pay
him any portion of the net profits of the sale
except the sum of S125, admitted as before
stated.
Prior to the first demand for an account OF
the lands sold having been made that is. on
November 1, 1883, the defendant received an
offer of SO per acre for all the lands acquired
under the agreement, and was urged by the
plaintiff to accept it; but having sold q por-
ton to Taylor he could not do So and has
ever since been unable to sell the remainder OF
the lands.
The land sold to Taylor was the only portion
of the lands that the defendant sold and the
only amount OF money, In which the plaintiff
mad any interest, that the defendant misap-
propriatod, was the amount he gave his rel;l-
tive, Taylor, credit for Indefinitely.
On these facts the Court awarded the
plaintiff S597 so. with legal interest thereon
from the date of the sale of the portion of the
land to Taylor, and an undivided one-half in
terest in the lands remaining unsold, subject.
however, to a lien in favor of the defendant
for the sum of 81 rs per acre to cover the
purchase price he paid therefor to the Govern
ment.
The defendant contends that the written
superseded the oral agreement, and that, ac-
cording to the latter, the profits were not to be
divided until all the lands were Sold
The verbal agreement, alleged in the COM
tered into in November, 1855, and all the
land in question, except the 610-acre tract.
was acquired pursuant TO it, nearly seven
months before the writing was made which
defendant claims superseded the verbal agree
ment.
The writing itself does not contain anything
inconsistent with the verbal agreements: il
merely states the substance of 1t. The only
witnesses examined in tue cause Were the par
ties to it, and nowhere in their testimony does
it appear that the writing was given or re-
ceived as 4 contract which was intended to
supefsede all their previous negotiations and
stipulatioBs concerning the same subject mat
ter. The defendant testified TINT; '.There was
no written agreement frnm January till June,
and the reason made that little writing was
was afraid that Carpenter was afraid of my
my word was as good as my bond,n (Fol.
1121
The plaintiff testified tfol. ] OF, 1O2e "My
contract with defendant became complete
when the writing oi June b, 1856, was exc
cuted. That writing contains the substance oj
the agreement"
The foregoing is all the testimony that was
the court was justified in finding therefrom
in view OF the contents of the writing itself
that it was given and received as n mere
acknowledgment or memorandum of the yer.
bal agreemept, The statement of the plaintiff
that the contract became complete, eto must
when read in connection with the defendants
statement of the d!strust with which he
! ithe plaintif) felt safe in having tangible
and complete acknowledgement of the existence
OF their verbal agreement and Of his interest