the saw-mill was very old, and pretty well worn out. That W. E. Davis and G. S. Davis were brothers. That the wife of plaintiff was the sister of W. E. and G. S. Davis, and also the sister of the wife of Elias Bruner. That the plaintiff kept the books, and also collected for the firm, borrowed money, brought suits against different parties, and did almost everything that was to be done to further the interests of the firm. That the defendants allowed him to hold himself out to the public as a partner, to sign the firm name to negotiable paper, subscriptions to public enterprises, and officials' bonds, to bring suits, and defend suits, as a partner. That land was condemned for a milldam. That plaintiff paid the money therefor from the proceeds of the business. That a dam was constructed across the Neosho river, where the mill is now located. That the old mill was taken down and moved to the new location in the spring of 1880. That a new mill was made out of it; that is, the old mill was rebuilt, and considerable new machinery put in it. That the expense of doing this was over $4,000. That about $1,500 was borrowed. That the balance of the money was paid from the proceeds of the mill. That the defendants accepted $110 they owed him prior to March 12, 1875, as part payment of the $3,000, and used it in the partnership business. That the plaintiff also paid between $50 and $60 upon the purchase price of his interest in the firm after he became a member thereof. That during the partnership he drew out $1,900. That about the middle of November, 1882, plaintiff was excluded by the defendants, without any good reason or excuse, from further participation in the partnership, and was forbidden by the other partners from exercising any rights or contro! over the partnership business or property. That at the time of such exclusion the property of the firm was worth about $30,000, having increased from $12,000 in 1875 to $30,000 in 1882. After the introduction of all the evidence, on the part of the plaintiff, that the court would admit, the defendants interposed, and filed a demurrer thereto, upon the ground that no cause of action was proved. The court sustained the demurrer, and plaintiff excepted. This is the important ruling complained of. To sustain this ruling, the defendants contend that the contract of March 12, 1875, being for an interest in real estate, is, as to such real estate, void, underthe statute of frauds; and that, being void as to the real estate, it is also void as to the personal property, and the right to become a partner, which, as defendants allege, were parts of an entire and indivisible contract. The proposition is conceded by the defendants, that where real estate is purchased with partnership funds, for partnership purposes, after the partnership has been formed, such real estate is to be treated as part of the partnership property, and, as a consequence, personal estate. It is also well settled "that parol testimony is admissible to prove a resulting trust in relation to real estate, and that land purchased in the name of one partner, for the use and benefit of the firm, raises a resulting trust which will be enforced."

Story, Eq. Jur. §§ 1206, 1207; Scruggs v. Russell, 1 McCahon, 39. These principles are applicable to this case and decisive against the defendants. When the plaintiff was taken into the partnership of W. E. Davis & Co., on March 12, 1875, as the firm was then in existence, and in the possession of real estate purchased for partnership purposes, and then appropriated to those purposes, such real estate was partnership property, and the plaintiff, by acquiring an interest in the partnership by verbal contract, and thereafter having acted under the contract as one of the partners, with the consent of all the members, is not to be deprived of his interest in the partnership, either as to the personal property or real estate, on account of the statute of frauds. The cases establish that a partnership in any branch of trade or business may be shown by parol as an existing fact, and that whatever real estate is held for the purposes of such business is regarded as an incident thereto, and the law will imply a trust in favor of the partnership, however the lands be held in law. For an illustration: If a mercantile firm carrying on the business of buying and selling goods, and as an incident to the business owning and having in possession the building in which the business is transacted, takes into the partnership another person, who purchases an interest in the partnership, and, as a partner, is let in possession of the partnership property, and all the parties act on the agreement, such person is not to be deprived of his right in the real estate held by the firm at the time he became a member thereof because his agreement with the other partners was not in writing. If the partnership be proved, that will suffice to establish a partnership trust in the land intended and treated by all the partners as partnership property, however the land be held; and this will not be incompatible with the conditions of the statute of frauds. Scruggs v. Russell, supra; 1 Lindl. Partn. 87-90; Bird v. Morrison, 12 Wis. 138; Whaling Co. v. Borden, 10 Cush. 458; Browne, Frauds, §§ 259-263.

We think it is immaterial whether the real estate in this case was bought with partnership funds, for partnership purposes, after the formation of the partnership, or whether a part of the real estate was put into the firm as partnership property at the formation of the new firm on March 12, 1875, if the parties have acted on the agreement and become partners. In such case, the statute of frauds ceases to be applicable. Smith v. Tarlton, 2 Barb. Ch. 336; Bissell v. Harrington, 18 Hun, 81. It is further claimed, on the part of the defendants, that the plaintiff was not to acquire any interest in the partnership until he paid the $3,000 agreed upon; that this was a condition precedent, and that, as the plaintiff failed to pay the same, he never became a partner or had any interest in the partnership property as a partner. It is a sufficient answer to all this that the evidence is the other way; therefore we need make no further comment upon this claim. Christie v. Barnes, ante, 599. As the court below tried the case upon an entirely erroneous theory, it is unnecessary to

refer to the various alleged errors concerning the rejection of competent evidence. We may say, however, that the rules governing the admission of evidence were frequently and flagrantly violated. We cite one instance: In November, 1881, there had been an inventory of the property of the partnership taken, and an adjustment made between the partners of the accounts. After the inventory was completed, it was placed in the safe of the mill and remained there until the middle of October, 1882. This inventory was competent and important evidence at the trial. The plaintiff issued a subpoena duces tecum, under the provisions of section 325 of the Code, to W. E. Davis, one of the defendants, directing him to appear and testify as a witness upon the trial, and requiring him, as such witness, to bring with him the inventory. The witness appeared, and was duly sworn. In accordance with the subpoena, he brought the inventory into court and had it in his hands at the time he was upon the witness stand. He was then asked to produce it. The defendants objected, and the court sustained the objection, and in sustaining the objection said:

"I can't see, for the life of me, that the defendant is bound under the law to produce that instrument as evidence. There are provisions of the statute which, perhaps, may give the plaintiff such an advantage or such a right, but there is nothing to indicate that the plaintiff has proceeded under that section of the statute, as the subpoena has been issued under section 325."

Exactly what the court meant by these remarks, it is difficult to understand, but if section 368 of the Code was intended to be referred to as prescribing the method to obtain an inspection of the written memorandum, that section does not justify the action of the court. It is expressly provided therein as follows: "This section is not to be construed to prevent a party from compelling another to produce any book, paper, or document when he is examined as a witness." Therefore, the ruling of the court in refusing to make the witness produce the memorandum in his possession was palpably wrong, and we think the counsel for plaintiff are not far out of the way in saying, “the trial court erred almost from one end to the other." During the trial of this case, the court below was literally "a court of errors." It is not possible that upon another trial these errors will be repeated. The motion to dismiss cannot be sustained, for, although the suggestions of amendments are not inserted in the body of the case in their appropriate places, they are attached to and made a part of the case, and are paged in connection with the case. The practice, however, of thus attaching suggestions of amendments is not to be commended. It gives this court increased labor, and frequently renders an intelligible examination of the case almost impossible. Dowell v. Williams, ante, 600.

The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.

(All the justices concurring.)

(33 Kan. 465)

BERNHARD and others v. CITY OF WYANDOTTE.

Filed April 10, 1885.

1. PLEADING-ACTION ON CITY TREASURER'S BOND.

In an action by a city against the principal and sureties on a city treasurer's bond, where the petition in detail sets forth the substance of the bond, and also sets forth in detail that the city treasurer, by virtue of his office, received large sums of money belonging to the city, which were not used or paid out for the city, and which he failed to pay over to his successor in office or to account for, and which he converted to his own use, such petition states a cause of action on the bond.

2. PRACTICE-REFERENCE-OBJECTIONS TO TESTIMONY.

On the trial of a case before a referee, the referee, in several instances, did not decide the questions arising upon objections made to evidence at the time when the objections were made, but reserved his decision on such questions until his final decision of the case, and then decided such questions, and proper exceptions were noted. Held, not error.

3. CITY TREASURER-ACTION ON BOND-SECOND BOND-PRESUMPTION.

Where a city treasurer serves two terms under two official bonds with precisely the same sureties on each bond, and an action is commenced against the treasurer and his sureties on the second bond, held, that it will be presumed, in the absence of anything to the contrary, that the treasurer, at the time of giving his second bond, had in his possession all the moneys belonging to the city which he at that time and upon an accounting should have had in his possession as city treasurer, and that he and his sureties on his second bond are liable therefor.

4. SAME EVIDENCE.

In an action on a city treasurer's bond, where it is alleged that he failed to account for certain specific items, held, that evidence may be introduced, if necessary, with respect to all his transactions as city treasurer to prove that he did not account with reference to these particular items

5. SAME-RECORDS OF COUNTY CLERK.

Also held, that the records of the county clerk may be introduced in evidence for the same purpose

6. SAME-FINDINGS.

Also held, that the evidence sustains the findings of the referee.

7. SAME-DEMAND.

And further held, that a sufficient demand was made in this case

Error from Wyandotte county.

Hadley Harlow and N. Cree, for plaintiffs in error.

Henry McGrew and Goodin & Keplinger, for defendant in error. VALENTINE, J. This was an action brought in the district court of Wyandotte county by the city of Wyandotte against Chris. Bernhard, as principal, and J. W. Wahlenmaier, Byron Judd, and Herman Belter, as sureties, on the official bond of Bernhard as the treasurer of said city. The case was referred, by the consent of the parties, to the Hon. NELSON COBB for hearing, who tried the case and found in favor of the plaintiff and against the defendants in the sum of $6,586.66, for which sum, with costs, the district court rendered judgment. The defendants, as plaintiffs in error, now seek a reversal of such judgment by petition in error in this court.

We shall consider the various points made by counsel. We think the petition in the court below was sufficient. It gave the substance of the bond sued on, and for a cause of action thereon alleged several

breaches thereof. It alleged that Bernhard, by virtue of his office, received large sums of money belonging to the city, which were not used or paid out for the city, and which he failed to pay over to his successor in office or to account for, and which he converted to his own use. Also specific sums are mentioned in the petition as not having been accounted for. The breaches of the bond are also alleged in detail, as well as generally. This, we think, is sufficient. The old forms of pleading are abolished in Kansas, (Civil Code, § 85,) and all that the pleader is now required to do is to state the facts of his case in ordinary and concise language, and without repetition, (Civil Code, §§ 87, 94,) and this was sufficiently done in the present case; and certainly, as no demurrer was filed to the petition, no motion to make it more specific or definite, and as no objection was made to the introduction of evidence because of any supposed defect in the petition in not stating facts sufficient to constitute a cause of action, the petition must now be held to be sufficient. The first objections made to the petition were placed in the motion for a new trial; but, as before stated, we think the petition is sufficient; and sufficient as setting forth a cause of action on Bernhara's official bond. It stated a cause of action independent of the allegations of conversion, and such allegations may be treated as surplusage.

On the trial of the case, the referee, in several instances, did not decide the questions arising upon objections made to evidence at the time when the objections were made, but reserved his decision on such questions until his final decision of the case. This was not error; it is the almost universal practice of courts and referees to try cases in this manner. The practice hastens the trial, and by this means the objections are more intelligently considered and decided. Of course, there might be cases where a court or referee would err materially if it did not render its decision upon objections made to evidence immediately; but this is not one of such cases. This is one of that class of cases in which justice could better be done by the referee's doing as he did. The reserved questions were all decided at the time of the final decision, and the evidence admitted or excluded, as the referee thought right under the law, and the other evidence introduced and proper exceptions noted.

It appears in this case that the defendant Bernhard served two terms as city treasurer of Wyandotte; that he gave a bond for each term; and that the other defendants, and they only, were his sureties on each of such bonds. The present action is on the second bond. It also appears that the plaintiff introduced evidence for the purpose of showing that a large amount of money belonging to the city was in Bernhard's hands at the time he gave the second bond. This evidence was objected to on the ground that it was incompetent, for the reason that the action was upon the second bond only. We think the evidence was competent. It was not introduced for the purpose of showing a default or liability on Bernhard's first bond, but to show