between the plaintiff and the defendant Gordon; and not only this, but the verdict of the jury was responsive to such issue.

We find no error in the record, and no alleged error in addition to what has been discussed that is of sufficient importance to merit discussion.

The judgment and order are affirmed.

We concur:

KERRIGAN, J.

HALL, J.

Civil No. 575. Third Appellate District.

COOPER, P. J.

November 16, 1909.

G. F. NIROAD, Plaintiff and Appellant, v. F. F. FARNELL et al., Defendants and Respondents.

[1] ACTION IN CLAIM AND DELIVERY-PARTNERSHIP PROPERTY-RE COVERY BETWEEN PARTNERS NOT PERMISSIBLE.-A partner cannot recover partnership property from his co-partner in an action of claim and delivery.

[2] ID. PARTNERSHIP-FORMATION-CONSENT-EVIDENCE-ACTS AND DECLARATIONS OF PARTIES.-A voluntary association of two or more persons for the purpose of forming a partnership may be shown without proving an express agreement, by a rational consideration of the acts and declarations of the parties.

[3]

ID.-ID.-ID.—ID.-ID.-ID.-CASE AT BAR--PARTNERSHIP IN BOAT AND INCIDENTAL BUSINESS-FINDING SUPPORTED BY EVIDENCE.It is held, in this action in claim and delivery to obtain the possession of a boat, that the defense of a partnership therein between the parties, is fully supported by the evidence of the defendant, which carried with it the necessary inference, that the parties understood they were partners, acted entirely as such, and expressly agreed to build and operate the boat together.

Appeal from the Superior Court of Sonoma County--Thos. C. Denny, Judge.

For Appellant-T. J. Butts.

For Respondents-W. F. Cowan and W. E. McConnell.

This is an action in claim and delivery to obtain the possession of a certain gasoline boat used for conveying passengers on Russian river between Russian River Landing and Monte Rio in Sonoma county, and the complaint is in the usual form. The answer denies the ownership of plaintiff or his right to the possession of the property, and alleges ownership in defendant Farnell and sets up as a separate defense that said defendant has a lien upon the property by virtue of services performed and materials furnished for said launch with the knowledge and consent of plaintiff. There is also an averment that by reason of an execution issued upon a judgment in favor of one Hoag against said defendant, the sheriff of Sonoma county had levied upon and taken possession of the property, but this feature may be dismissed from further consideration as the court found that "before the commencement of this action said process lapsed and expired and said defendant John K. Smith (the sheriff) and William Loftus (the deputy) at the time of the com mencement of this action did not have possession of said property”,

and besides, admittedly, the process could reach only whatever interest that defendant Farnell might have in the boat.

The decisive question in the cause is involved in the findings of the court that the plaintiff was not the owner of the property and "that about the month of April, 1905, plaintiff and defendant F. F. Farnell, as copartners and not otherwise, purchased and constructed said boat and thereafter as such copartners operated the same for hire until about the month of April, 1906, when plaintiff left said Sonoma county, refused to contribute further to said copartnership or assist in care or management of said business thereof and declined to be further responsible for any of the obligations thereof and thereafter said last named defendant continued to care for said boat and expended large sums in the repair and care thereof and operated said boat under his own management and has not been remunerated therefor by plaintiff and that the said F. F. Farnell, with the knowledge and consent of plaintiff, agreed to pay and discharge the obligations due Mrs. Niroad for the sum of $517 moneys advanced by her to said copartnership for the purchase of the engine in said boat, on the understanding and agreement that said plaintiff had ceased to contribute to other obligations of said copartnership."` [1] In fact, the finding that there was a partnership, if there is sufficient evidence to support it, is all that need be considered, since in that event the plaintiff could not recover in an action of claim and delivery, as the defendant would have an equal right to the possession. This proposition is not disputed, but it is claimed that the evidence is insufficient to justify said finding.

It may be remarked that no specific allegation of partnership is made in the answer, but no point is made as to this and it is assumed that the proof is within the general issue.

We think the court's conclusion as to the partnership is amply supported. A partnership, as defined by section 2395 of the Civil Code, is "the association of two or more persons for the purpose of carrying on busmess together and dividing the profits between them". This necessarily implies that it must be with the consent of the parties, but we have in section 2397, Civil Code, the legislative declaration that "A partnership can be formed only by the consent of all the parties thereto, and therefore no new partner can be admitted into a partnership without the consent of every existing member thereof."

[2] It is evident, though, that this voluntary association may be shown without proving an express agreement to form a partnership. The court may well base its finding upon a rational consideration of the acts and declarations of the parties. In the case at bar, giving full credit to the testimony favorabie to respondent, as we are required to do, the inference is fair and reasonable that a partnership existed in the boat and the business incident thereto. Although there are other testimony and circumstances lending aid to the court's conclusion, the following quotation from Farnell's testimony ought to set the matter at rest: "I came with my wife to Monte Rio in April, 1905, and lived with her mother and plaintiff. Niroad started to build the boat two weeks afterwards. Niroad and I worked together all the time. The money that paid for this boat came

from Mrs. Niroad, plaintiff's mother. She said she would advance the money for the engine as the 'boys' as she called it were going in together. We all lived together as one family and were supported by the proceeds of the boat. I was not paid wages. Niroad left in April, 1906, and didn't come back till July, 1907. During all his absence I cared for the boat. I expended $120 in 1906 and $75 in 1907 for repairs. In December, 1905, or January, 1906, he offered to sell his interest in the boat to me for $225. The operating expenses were paid from the revenue of the boat. The lumber, drivinggear, countershaft, friction gear and engine tools were paid out of the earnings of the boat. After these were paid the earnings for the first year were divided between plaintiff and myself, after taking out house fund of one dollar per day. Before we started to build the boat Niroad proposed that we build one and put it on the river and we could make some money and I said all right. Mrs. Niroad said she would advance the money. Niroad never offered to pay me for the care of the boat or the moneys I expended in repairing it." [3] The foregoing carries with it the necessary inference that the parties understood they were partners, acted entirely as such, and, indeed, that they expressly agreed to build and operate the boat together.

The other portion of the finding which we have set out aiso finds support in the evidence, but the establishment of the partnership is controlling and renders unnecessary any further consideration of the evidence.

The argument of appellant and the authorities cited have received our careful attention, but they have not disturbed our confidence in the soundness of respondent's position. We find no prejudicial error in the record and the judgment is affirmed.

We concur:
HART, J.

CHIPMAN, P. J.

BURNETI', J.

Civil No. 6C0. Third Appellate District. November 16, 1909. CHARLES W. MOTT, Plaintiff and Appellant, v. ISAAC MINOR, Defendant and Respondent.

[1] ACTION ON CONTRACT-BROKER'S COMMISSION-PURCHASER FOR REAL ESTATE-PLEADING-COMPLAINT AUTHORITY AT TIME OF PROCUREMENT IMPLICATION.-A complaint in an action to recover a broker's commission for securing a purchaser for real estate, which alleges the employment to sell on a designated date, the entry "thereupon" of such service and the procuring of a purchaser, is sufficient, without a specific averment of the continuance of such authority until the time when the buyer was procured.

[2]

ID. PLEADING GENERAL DENIAL-EVIDENCE-PROOF ADMISSI BLE. Any facts which tend to disprove some one of the material allegations of the complaint may be given in evidence under a denial.

[3] ID.-ID.-NEW MATTER-EVIDENCE-SPECIAL DEFENSE.-Facts which do not directly tend to disprove the allegations of the complaint are "new matter", and admissible only under a defense specially pleaded.

[4]

ID.-ID.-EVIDENCE-PURCHASER AS AGENT OF UNDISCLOSED PRINCIPAL-READINESS AND WILLINGNESS OF AGENT TO BUY-VARIANCE. Where in an action for the recovery of a commission for

securing a purchaser for real estate, the evidence shows that the person alleged to have been able, ready and willing to buy, was not to be the purchaser, but was acting for an undisclosed principal, there is a variance between the complaint and the proof.

[5] ID. BROKERS' COMMISSION-SALE OF REAL ESTATE FINDING AND PRODUCING PURCHASER-WHAT CONSTITUTES.-The readiness and willingness of a person to purchase can be shown only by an offer on his part to purchase, and unless he has actually entered into a binding contract, or has offered "to the vendor" to enter into such a contract, he cannot be considered a purchaser.

[6] ID.-ID.-ID.-OFFER TO PURCHASE-WHEN ESSENTIAL.-The procuring of a purchaser able, ready and willing to purchase without an offer to purchase, is insufficient to entitle a broker to the commission, where the purchasing party is undisclosed to the vendor.

Appeal from the Superior Court of Humboldt County-G. W. Hunter, Judge.

For Appellant-Arthur H. Barendt.

For Respondent-F. A. Cutler, Geo. D. Murray and McGowan, Squires & Westlake.

The cause, involving a broker's commission for securing a purchaser for timber land, was tried before a jury and a general verdict was rendered in favor of defendant. The appeal is from an order denying plaintiff's motion for a new trial.

The written instrument which, it is claimed, created the agency is in the form of a letter signed by defendant and in the following language:

"Chas. W. Mott, Esq.,

"San Francisco, Calif.

"Dear Sir:

"San Francisco, Cal., July 27th, 1903.

"I own about 20,000 acres of sugar and yellow pine land (more or less) situated in Tuolumne County, California, and being located in townships 1 and 2 South, Ranges 18, 19 and 20 East, M. D. M. and will sell the same for twenty dollars per acre. If you procure me a buyer for the above mentioned tract, or are instrumental in selling same, I hereby agree in consideration of such service, to allow you ten per cent commission on the above price, or any less price that I may agree to accept in the event of a sale being made under within conditions."

The complaint, after alleging the employment of plaintiff by virtue of said written agreement. continues: "That thereupon plaintiff entered upon said service and made every endeavor to procure a buyer for the said land and his efforts in that behalf were such that on or about October 1, 1903, plaintiff procured one Thomas Friant as a buyer for the said tract of land at the said price and introduced him to the defendant and informed the defendant that the said Thomas Friant was then and there ready, able and willing to purchase the whole of the said tract of land for the said price, and he, the said Thomas Friant was then and there abie, ready and willing to purchase of the defendant, the whole or any part of the said tract of land at the said price of twenty dollars per acre; that the negotiations thus initiated continued and on or about July 13, 1904, the said Thomas Friant offered the said defendant twenty-three dollars per acre for the said tract of land and he was then and there

able, ready and willing to purchase the said tract of land and pay therefor the said sum of twenty-three dollars per acre to defendant."

The defendant denied "that on the 27th day of July, 1968, or at any other time, the defendant employed the plaintiff, as a broker or otherwise, to sell for him certain or any real estate, except as hereinafter stated; that is to say, that at the time last mentioned, the said plaintiff represented and asserted to the said defendant that he had secured a purchaser for the lands and premises referred to and mentioned in the said complaint, and that if he had some instrument to show his authority to make a sale therefor to the said intending purchaser, he, the said plaintiff, would be in a better position to consummate a sale, and thereupon for the purpose of showing the authority of the said plaintiff, as aforesaid and not otherwise, the said defendant made and executed the instrument set forth in the complaint herein." All the other allegations of the complaint are specifically denied.

The first contention of appellant is that the court erred in admitting evidence of the rescission of the plaintiff's authority as agent for defendant. It is said in the brief: "The answer does not disclose any such defense as cancellation. There is no general denial in the answer. It is, in fact, a confession and avoidance, an admission that the contract was made and a denial of its apparent intent, coupled with a denial that plaintiff performed the services so as to entitle him to the commissions for which he sues." It is urged, therefore, that the cancellation was new matter and should have been pleaded in accordance with the rule laid down in Bliss on Code Pleading, 2nd ed., page 519, as follows: "It has been supposed by some that the defendant should still be permitted, under the code, to prove any facts, under a denial merely, which admit it was invalid. But it has been shown that the defendant is at liberty, without having especially pleaded them, to give evidence of facts only which tend to disprove the facts alleged and denied-that is, to disprove their existence as facts, and not the liability they create. The permission goes no further. The rule has been thus stated: ‘A general traverse, under the code authorizes the introduction of uo evidence except such as tends directly to disprove some fact alleged in the complaint.' Whenever a defendant intends to rest his defense upon any fact which is not included in the allegations necessary to the support of the plaintiff's case he must set it out. The general rule is that any fact which avoids the action, and which the plaintiff is not bound to prove in the first instance in support of it, is new matter; but a fact which merely negatives the averments of the petition is not new matter and need not be replied to.'”

Upon reflection it will appear that defendant has brought himself clearly within the rule as announced in the foregoing quotations. In order to prevail it was necessary for plaintiff to show two things: first, that he secured a purchaser for the land, and, second, that when he did so he was the duly authorized agent of the defendant for that purpose. It is clear that unless these two circumstances concurred no cause of action existed. [1] The complaint, it is true. does not specifically allege that plaintiff's authority continued till the time when the offer was made, but this is nevertheless admittedly a material factor and it does at least inferentially appear. Other