be perfectly willing, when that stock was sold and I would receive my money from it, to put in any amount that would be agreed upon by us gentlemen at a later date, five or ten thousand dollars. . . . Mr. Nims stated to Mr. Clarke that he had to take care of me until such time as I sold the stock Mr. Clarke suggested that he would come in with us and put up his third and send a check in a few days. Mr. Nims said, 'Well, boys, I am going through with it anyway.' Mr. Clarke says, 'Be assured in a few days I am going to come in.' . . . During this conversation no mention was made of the contract between Mr. Nims and myself."

.

It further appears, and the court found, that on or about October 17, 1916, and prior to the obtaining of the royalty contract from the Samson Sieve-Grip Tractor Company, the plaintiff and defendant, by mutual consent, both offered to C. D. Clarke one-sixth of their respective interests, that said Clarke accepted said offer, and that thereupon the interests of said partnership and its assets of said Clarke, plaintiff and defendant were equal, each acquiring a one-third thereof; "that, during the month of January, 1917, defendant, without the knowledge or consent of plaintiff, agreed to return to said. Clarke all moneys which he had theretofore advanced toward the aforesaid partnership business, and in return therefor the said Clarke agreed, without the knowledge or consent of plaintiff, to assign to defendant his one-third interest in and to said partnership and its assets"; that during the month of April, 1917, the said agreement between said Clarke and the defendant was consummated in accordance with the terms thereof, and that thereupon the said Clarke ceased to have any interest in said partnership or its assets.

On or about April 3, 1917, defendant sold to the Samson Company his royalty contract with the company and received the sum of twenty-two thousand five hundred dollars. When plaintiff learned of this fact he asked defendant what he was "to get out of it," to which defendant replied, "You don't get a thing."

Upon an accounting, subsequent to the trial, it was stipulated that defendant received twenty-two thousand five hundred dollars; he was credited with two thousand five hundred dollars the payment made by him on account of the contract, and $574.20, disbursements made by him, leaving net proceeds in his hands of $19,425.80. Plaintiff waived all

claims for expenses and disbursements made by him, and the judgment in his favor was for one-third of said $19,425.80.

It is proper to say and briefly to show herein that the defendant's version of the transaction between him and the plaintiff was, in material particulars, wholly at variance with that of the latter. The defendant testified that, at the time of the conference at the Hotel Stockton, it was understood that he and plaintiff owned the contract jointly. "I guess," he continued, "there is no question as to Mr. Keyes being a partner up to that time. Mr. Clarke understood it so, so did I." Referring to conversations leading up to the execution of the Keyes-Nims contract, witness said plaintiff told him "that he had a contract with the Samson Company by which he would make fifteen thousand dollars, and, outside of a thousand he wanted to pay on his house, he could put the entire balance into the business"; that as the expenses accrued each was to put in his share of the money. The witness said that he told plaintiff that Mr. Clarke was desirous of coming into the business; that plaintiff consented to Clarke coming in and "said we would divide it three ways, that we would each put up $833.33, which would have to be paid to the Samson Company within two or three days." As to the meeting at the Hotel Stockton, which defendant said was on October 17th, he testified: "It was discussed that we would raise a fund of either five or ten thousand dollars each as a nucleus upon which to start our new plant. Mr. Clarke said, 'Mr. Keyes, are you ready to put up this money?' Mr. Keyes says, 'Yes, I will put up my money right off, right away.' . . . I said, 'Whether either one of you go in or not, I have decided I am going to take on this contract.' Mr. Clarke said, 'Anyone who doesn't put up his money doesn't get in.' Mr. Keyes said that was agreeable to him. He sanctioned that." Clarke and defendant each paid $1,250 of the first payment of two thousand five hundred dollars to the Samson Company.

C. D. Clarke testified, regarding the meeting at the Hotel Stockton, as follows: "We discussed the financing of the contract with the Samson Company. I said, 'Boys, I am going to pay this money anyhow; I am going to take care of the contract.' And we each agreed to pay our share at once; that is to say, I agreed and Mr. Keyes agreed. I said, ‘I will take one-third of it.' Mr. Keyes said he would pay one

third of it. The matter of failure to pay was brought up and I said, 'Who fails drops out.' Mr. Keyes said, 'That is O. K.'" The witness said that defendant did not say at the meeting that he would carry plaintiff for his share of the money that was to be paid upon the Samson Company contract.

[1] But, in determining whether the findings of the court are supported, we are required only to look to the testimony presented by the plaintiff and, if sufficient, we may disregard, in such consideration, any adverse showing made by the defendant. It cannot be doubted that the testimony of the plaintiff amply supports all the vital findings made by the trial court; hence, the following must be regarded and accepted as the established facts of the case: That the Keyes-Nims agreement, as given above, was made and entered into by and between the plaintiff and the defendant; that the intention of the parties, as expressed or contemplated by said agreement, was, according to an admission by the defendant, to enter into copartnership with respect to all dealings and contracts which they might have or enter into with the Samson Sieve-Grip Tractor Company, and that they were each to have an equal interest in such dealings and contracts; that, after the said agreement had been made, one Clarke was invited to enter as a third party into the agreement, and upon the consent of the plaintiff as well as that of the defendant did join the two latter in the proposed arrangement as a party thereto; that Clarke and the defendant advanced their respective proportions of the aggregate amount of money required to carry out the agreement, and that the defendant agreed to advance the plaintiff's part thereof upon the agreement and understanding that the plaintiff, upon receiving certain moneys he had in prospect, would repay the defendant the money so advanced for plaintiff.

The theory of the respondent, and the complaint proceeds upon that theory, is that the relation between the plaintiff and the defendant as produced by the agreement was that of a partnership; and the court below so decided. Counsel further contends, however, that if, strictly, the relation so produced was not that of a partnership, it certainly was that of a joint adventure.

It is obvious that the agreement, as originally formed, contemplated that there should be a division between the plain

tiff and the defendant of the profits derived from the business or enterprise in which they agreed to jointly engage, and to this extent the relation created between them by the agreement bears the earmarks of a partnership, which, as defined by our Code, is an "association of two or more persons for the purpose of carrying on business together, and dividing its profits between them." (Civ. Code, sec. 2395.) On the other hand, the agreement related to a single transaction, viz., the procurement of a contract from the Samson Company whereby the plaintiff and defendant would be permitted and authorized to erect one or more plants and to sell said company's tractors in certain designated territory in the United States and Canada, the plaintiff and the defendant, as seen, to share equally in said contract and the profits accruing therefrom. [2] It is said by the authorities that one of the distinctions differentiating a partnership from a joint adventure lies in the fact that, while a partnership is ordinarily formed for the transaction of a general business of a particular kind, a joint adventure relates to a single transaction, although the latter may comprehend a business to be continued for a period of years. It is also said that another feature distinguishing a partnership from a joint adventure is the fact that a corporation incapable of becoming a partner may bind itself by contract for a joint adventure, the purposes of which are within those of the corporation. (23 Cyc., p. 453.) There are other features which differentiate the two relations, among which may be mentioned the element of principal and agent which inheres in the partnership relation, each partner embracing the character both of a principal and agent, being the former when he acts for himself in the partnership. (Story on Partnership, sec. 1; Jackson v. Hooper, 76 N. J. Eq. 185, [74 Atl. 130, 135].) In a joint adventure, no one of the parties thereto can bind the joint adventure.

[3] But there is a considerable amount of law upon this subject, the discussion of which here may well be regarded as academic, since it is a matter of absolutely no consequence, so far as the decision of this case is concerned, whether the relation created between the parties to this action is that of a partnership or a joint adventure, or a limited partnership, which we are inclined to believe it to be; for it is held by the cases that the resemblance between a partnership and a joint adventure is so close that the rights as between adven

turers are governed practically by the same rules that govern partnerships. (15 Ruling Case Law, p. 500.) Accordingly, a joint adventurer, as a partner in a partnership may do, may sue in equity for an accounting of the profits flowing from the joint adventure. [4] It is true that one party in a joint adventure may sue the other at law for a breach of the contract or a share of the profits or losses or a contribution for advances made in excess of his share, as where the adventure has been closed and a party thereto is entitled to a sum certain as his share of the adventure, but the right thus to sue at law does not preclude a suit in equity for an accounting. (15 Ruling Case Law, p. 507.)

[5] The complaint here proceeds, as we have stated, upon the theory that the agreement between the parties involved the establishment of a partnership relation, and the court's decision was according to that theory, the interlocutory judgment decreeing a dissolution of "said partnership," that plaintiff is entitled to one-third of the net profits realized from "said partnership business," and that plaintiff have an accounting of said "partnership business" to determine the amount of said net profits, etc. Conceding that it is difficult to determine with accuracy from the pleaded facts and the evidence, or the agreement itself, whether the relation created by said agreement was a partnership or a joint adventure relation, still it is, of course plain that either one or the other of those relations is thus disclosed, and, since the enforcement of the rights of the parties may be accomplished by or through the agency of remedies applicable and pertinent alike to both relations, it is, as above suggested, a matter of no consequence here whether the relation between the parties be that of a partnership or that of a joint adventure. An accounting and a termination of the relation in either case may be had in a proceeding appropriate to such relief in a court of equity (Jackson v. Hooper, supra), and, therefore, if we assume that the relation between the parties was that of a joint adventure rather than that of a partnership, the decree herein comes as clearly within the issues made by the pleadings as though the complaint had specifically alleged that the agreement was a joint adventure. It follows that, whether the relation between the parties was that of a partnership or that of a joint adventure, the evidence is, upon its face, sufficient to have warranted the