This was the ultimate fact to be ascertained, and it is none the less a finding of fact because it is stated as a conclusion from other stated facts.

But it is claimed that this finding is not justified by the evidence. It is true there is no evidence that the note was authorized by the company at a company meeting, or that it was adopted in that manner after it had been executed by Longley. Nor is there any evidence either of the practice of this particular company, or of usage in similar companies, which would show the necessity of such action. Mining partnerships, where there are no partnership articles, are governed by the law of ordinary partnerships, except so far as the general usage of persons engaged in similar pursuits, or the established practice of the particular company has estab lished a different rule. The only difference generally existing, as established by the decisions of this court, are such as legitimately flow from the fact that in such partnerships there is no delectus persona: Bainbridge on Mines, 425.

The partnership was bound for the money at the time the second note was given, even if the first were invalid. They were using the property to purchase which the indebtedness. was incurred, and the evidence shows that all agreed that the purchase was a beneficial one for the company. All knew soon after the note was given, of its existence, and certain'y then believed it to be a company note, for they aver in the answer that they supposed it was so worded as to bind the company. No one can be supposed so ignorant as to have thought it would bind the company, no matter how it was worded, if given without authority, and in a matter in which the company had no concern. All acquiesced in paying interest upon the note until long after the debt would be barred, if the note were held invalid. Under such circumstances, justice and fair dealing require that they should be estopped from disputing its validity.

The case differs widely, upon the question of ratification, from the cases of Skillman v. Lachman, 23 Cal. 198, and McConnell v. Denver, 35 Cal. 365. In the first case it appears affirmatively that Lachman did not authorize the note, and had in no way recognized its validity. In the case of McConnell v. Denver, the note was given contrary to the

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terms of the contract, and had not been recognized as valid in any way. The proceeds of the ditch had been paid on account of the indebtedness, in accordance with the terms of the original contract of sale.

The note being established as a valid contract, binding upon the partnership as such, the partnership continued liable, at least to the extent of the partnership assets although some members of the company had in the meantime parted with their interests in the concern. The new members purchased with full knowledge of the indebtedness and of the note, and of course took their interests subject to the payment of the partnership debts: Duryea v. Burt, 28 Cal. 569.

But it is contended that Hernsley, Cummings and Baker, who were partners at the time the note was given, and who sold and transferred their shares before the commencement of this action, ought to have been made parties. If this were an action upon the note there would be some plausibility in this position. Ordinarily, when a partner retires from a firm he continues personally liable for the indebtedness, unless the new firm has assumed the debt and the creditor has taken them for it. If, in the case of a mining partnership, the retiring partner still continues bound, he, nevertheless, has parted with his equity to have the partnership debts paid out of the partnership property. The purchaser, however, having taken his interest subject to the debts, has no claim to recover against his vendor for any debts which may be paid out of the partnership assets. The former partners, there fore, have no interest except consequentially, in this proceeding, and, if proper, are certainly not necessary parties to it.

At the time the note was given, it appears that a mortgage was executed by Longley upon the property of the company to secure it. This mortgage, like the note, was executed for and on behalf of the company, and purported to be an incumbrance upon the property of the partnership, and not upon Longley's interest in it. This being a proceeding by one of the partners to obtain a dissolution of the partnership, and to have the partnership assets applied to the payment of the firm debts, and there being no other creditors, it is not material to inquire whether this strument is valid or not. The plaintiff does not appear here primarily as a creditor, but as a partner

seeking a dissolution of the company and a settlement of its affairs. If he is entitled to a dissolution the other relief must follow. There appears to have been no agreement that the partnership should continue for a fixed term, nor was any custom shown which could affect the question of duration. If it were otherwise, however, sufficient cause for a dissolution was shown. As the partnership was not dissolved by the death of Longley, Ciark had no right, as survivor, to take control of the property. This rule can only apply where the delectus persona exists, and the partnership is dissolved by the death of a partner.

The character of the interest which Glover had acquired in the partnership, if any, is not shown. Had it been, it may be that it would have appeared to the court that he was not a necessary party. He may have had no transfer of any interest, but only a promise, from Jones. At all events he is not shown to have been a necessary party.

The exceptions to the findings were properly overruled. The additional findings asked for were either immaterial or are the probative facts merely.

It was not necessary upon a reference, such as was had in this case, to move for a new trial in order to have the report modified by changing some of the findings of the referee : Harris v. San Francisco Sugar Refining Co., 41 Cal. 393.

The facts found by the referee in regard to the injury by washing away the bed-rock by the plaintiff, show that the damage was altogether hypothetical. There is no evidence of bad faith in the matter. Upon this state of facts the allowance was properly stricken out.

The allowance of one thousand dollars for washing away the reservoir, seems correct. It was virtually disposing of the property of the company, and Jones should be made to account for the value of it to the company. The allowance of one thousand dollars by the referee seems reasonable, and if it were too much this would not authorize the court to reject the demand altogether. The decree should be modified in this particular, by charging the plaintiff with this sum of one thousand dollars, as found by the referee.

Ordered that the case be remanded, with directions to modify the decree in accordance with this opinion.

TAYLOR V. CASTLE ET AL.

(42 California. 367. Supreme Court, 1871.)

No delectus personæ in mining partnerships. It is well established that in mining partnerships there is usually no delectus persona, and because of this peculiarity the partnership is not dissolved by the death of a partner, nor as a consequence of a sale of an interest by a partner to a stranger. Purchaser becomes presumptively partner. One who purchases an interest in mining claims owned by mining partners presumptively becomes one of the partners, though he takes no part in the management of the partnership affairs, and never holds himself out to the world as a part

ner.

2 Usage of the firm-Mode of contracting. Where a contract in writing. by which the plaintiff bound himself to erect a mill for defendants, purported to have been made by a mining partnership in its firm name through its secretary, and it appeared that such contract had been authorized by a vote of a majority of the shares at a meeting of the company, and after being signed by the secretary had been ratified and approved in the same manner, and it further appeared that though there were no written regulations or by-laws the company usually did business in this way: Held, that the recognized and established usage on the part of the firm should be taken as a part of the contract of partnership.

Former judgment for same cause, a bar. A judgment in a former action is well pleaded in bar of a suit for the same cause of action although the form of action has been changed.

Idem-Test of what is res adjudicata. The cause of action is said to be the same where the same evidence would support either action.

Appeal from the District Court of the Fourteenth Judicial District, Nevada County.

This was an action to recover the sum of three thousand dollars, the contract price for building a mill, alleged to be due from defendants as a mining partnership, doing business at Grass Valley, Nevada county, under the firm name and style of the New York Hill Mining Company. The defendants Castle and Seligman, in their answers, denied, among other things, that they or either of them were ever members of the partnership, or ever authorized or consented to the contract sued on, or were ever in any manner bound thereby;

1 Kahn v. Smelting Co., 11 M. R. 540; Jones v. Clark, Id. 474. 2 Mining Co. v. Anglo-Cal. Bank, 104 U. S. 192.

and they also set up, as a bar to the action, a judgment in their favor in a former action, brought by plaintiff against defendants for the same cause of action.

It appears that previous to the making of the contract for building the mill, the defendant Castle purchased the interest, being a one sixteenth, of P. H. Ford, one of the original partners of the New York Hill Mining Company, and afterward sold one half of such sixteenth to the defendant Seligman. Neither Castle nor Seligman, however, attended the meetings of the partnership, and there was nothing to show that they ever personally approved or consented to the contract of the company with the plaintiff.

The former action, which was pleaded in bar, was a suit by the same plaintiff against the same defendants, to recover the sum of two thousand six hundred and fifty dollars, alleged to be due on an accounting between the parties for building the mill under the same contract set up in this action. In that case there was a judgment in favor of defendants Castle and Seligman for their costs, and it was ordered, on plaintiff's motion, that the cause should be dismissed as to the other defendants, without prejudice to plaintiff's right to a new action.

On the trial the defendants Castle and Seligman rested their defense upon their plea of former recovery, and introduced in evidence the judgment roll in the former action. The court below decided against their plea, and the cause then proceeded and resulted in a judgment for plaintiff against all the defendants for three thousand two hundred and eightyfive dollars and eighty cents. The defendants Castle and Seligman moved for a new trial, which was overruled, and they then took this appeal.

G. F. & W. H. SHARP, for appellants.

A. C. MILES and J. C. DEUEL, for respondent.

By the Court, TEMPLE, J.

It

may be a matter of regret that our courts have gone to the extent they have in excepting mining partnerships from the general law of partnerships. It is very well established