The record-union., 1898-01-22
THEY WERE NOT PARTNERS.
NO CONFIDENTIAL AND FIDU-
CIARY RELATIONS.
Mrs. Norman's Judgment Was Only
an Ordinary One and She
Cannot Recover.

Judge Hughes yesterday rendered the
following decision, which involves an
important point:
! In the Superior Court Of the State of
California, in and for the County of
| Sacramento. In the matter of John
Stout, an insolvent debtor
| This is an application by Laura Nor
man, formerly Laura Payne, for an
order Of this court in the above-entit-
led matter. permitting and authorizing
the issuance of an execution on judg-
ment heretofore rendered in this court
in favor of petitioner and against said
John Stout, for the sum of S233 SO, and
the petition is based upon the following
state Of facts:
Some time prior to the 7th day Of
July, 1897, one A. J. Vermilya, Jr., and
the said John Stout, made and entered
into an agreement in writing, whereby
said Vernilya leased to said Stout a
| certain tract of land situated near Elk
Grove, in Sacramento County, for
term of years. Under this agreement,
said Stout agreed to render unto said
Verrnilya one-third of all of the crops
grown upon said lands, except such por-
ton thereof as should be fed to hogs,
and to turn over to said Vermilya one
third of all the hogs raised on said land
during the continuance of said lease.
Vermilya sold the land covered by said
lease, anad assigned his interest in said
lease to the petitioner Laura Norman.
Stout made default in the payment of
the rent reserved under the lease,
whereupon the petitioner commenced an
action in this court for an accounting
of the amount of crops grown and hogs
raised on said demised premises, and
for the recovery of one-third thereof, or
the value of the same. This action re-
suited in a Judgment in favor of the
petitioner. Laura Norman, for 1898 SO,
which was rendered and entered on
July Z, 1897, one day after the petit
toner John Stout had been adjudged
an insolvent debtor. The petitioner
contends that the contract in writing
and lease above referred to made the
petitioner and said Stout tenants in
common of the crops grown on said
ranch, and created between them a con-
fidential and fiduciary relation, and
that, for that reason, the said John
Stout cannot be discharged in insol-
vency Of his obligation to pay the judg-
ment above described.
In this contention I am unable to
agree. The Supreme Court of this
State has been called upon several times
to interpret similar contracts to the one
on which the petitioner recovered judg-
ment against said insolvent debtor In
the case of Walls VS.. Preston, % Cal,
60, Mr.. Justice Rhodes, after reviewing
the authorities, thus states the rule
with reference to contracts of this char
acter: 1T clearly appears to US that
the parties in this case intended to
make a lease, and that the instrument
executed by them was lease; but its
effect as such was not destroyed by
their having contracted for the pay
ment to the lessor OF a portion of the
specific crops to be produced, and that
the covenant was an agreement to pay
the rent Of the premises out Of the
crops In the later case Of Smith VS..
Schultz 50 Cal, 526, the Supreme Court
quotes with approval the decision of
Mr.. Justice Rhodes and effectuary sets
at rest In this State, the question that
cropping agreements of the character
of petitioners agreement with said in
solvent do not make the parties thereto
partners in any sense whatever, and do
not create any confidential or trust re-
lations between the parties.
It is true that petitioners action was
brought on the equity side of the court,
and that she recovered a judgment
against said insolvent; but the only
averments in the complaint in her ac-
ton on said cropping contract, which
authorized the maintenance Of the ac-
tion on the equity side Of the court,
were the averments upon which claim
for an accounting was based, and the
complaint in that action contains no
averments Of fraud or of any trust re-
lations between the parties thereto, and
the judgment is nothing more than an
ordinary judgment that said Stout is
indebted to the petitioner in the sum Of
1898 S3.
Petitioners contention that an inso1-
vent cannot be discharged of an obli-
CATION created by the embezzlement Of
the debtor, or while the debtor is act
ing in fiduciary capacity, is unques-
tionably correct, for such is the rule laid
down by Section 56 Of the Insolvent Act
of 1895. Unfortunately, however, for
the petitioner, the facts in the case at
bar, as hereinbefore stated, do not
bring her within that rule, because her
debt against the insolvent was not
founded in fraud or the result of the
abuse of a fiduciary relation.
1t follows that the prayer Of the pc
tition should be denied, and such is the
order Of the court.
Is a Citizen Now.
Judra Johnson Yesterday eprapted lot