purchase to Hunter and himself. Familiar principles are invoked in support of this position, and we shall best ascertain how far they may be applicable to the case by considering them with reference to the attitude of the parties in the several positions in which we find them in the record. And first let us put out of view their association as mining partners and tenants in common, and consider whether by the conference and agreement to pur hise the property between Foss and Bissell, anything was es ablished upon which the claim of the latter may rest. If two or more per-ons agree among themselves to purchase property for their joint account, and the purchase is accordingly made by one or more of them on behalf of all, the liability of each to pay his share of the purchase money, and his right to an interest in the property, can not be controverted. So, also, if two or more persons enter into a contract with another to purchase projerty, all matters being fully arranged in the agreem nt, the equal rights of all vendees to proceed in the execution of the contract may be conceded. To illustrate that proposition, if the Handley party had agreed with Bissell, Foss and Hunter to sell to them their interest in the mines, no one of the vendees cou'd have taken the title to himself under that contract until default by the party excluded, in some matter to which he was bound by the terms of the agreement. Again, if one takes unto himself a title which he has purchased with the money of another, he shall be a trustee for the true owner, who may rightfully follow his fund however it may be miscarried. But the record presents no one or more of these facts. There was, indeed, an agreement between Foss and Bissell to purchase the Handley interest, if that may be called an agreement which lacks the essential features of a price for the property and money to pay for it. But Handley, Robertson and Rawlings were not parties to that agreement, and therefore it was not in itself an agreement to purchase, but to negotiate with them for the property. In that form it presents no features which can affect the title to the property. At most it was an agreement between intending purchasers which could give no right to either until it should be consummated in the purchase of the property. If we regard Foss and Bissell as agreeing to an agency in respect to the purchase of the property,

the case is not different. For if one who is clearly an agent of another to purchase property, repudiate the agency and act for himself, using his own funds, he can not be declared a trustee for his principal. Burden v. Sheridan, 36 Iowa, 125. A different rule appears to be laid down in Story's Eq. Jur. Sec. 1211 a, but its limitation will be found in another section of the same volume, Sec. 1201 a.

An attempt was made in argument at the bar to put this case upon the footing of a numerous class in the books in which real property was granted upon a parol pledge from the grantee to make some disposition of it; as where a son has been granted an estate upon condition that he will support his father during his lifetime, or where a devisee has promised the testator to divide the estate with another. In all such cases the trust may be established by parol, and the trust itself stands on the plainest principles of justice. But to point out the distinction between those cases and the case under consideration can hardly be necessary. Foss received noth ng from Bissell on account of the purchase of the property, nor did he take the property with the understanding that he should admit Bissell to an interest in it. If he had received the property upon a pledge to hold it for Bissell, or to make some other disposition of it, his failure to do so would be a fraud upon the grantors as well as the beneficiary, of which either might complain, and the principle invoked would be applicable. But here there was nothing of that kind. The property was sold to Foss, who in fact received it, and Bissell comes to complain that he was not admitted to the purchase as by his agreement with Foss he should have been. However he may have been misled by the conduct of Foss, he was not in fact a purchaser, and Foss did not receive the property to his use in any way, and therefore he acquired no interest in it.

If now we turn to the co-tenancy of the parties we find in that relation nothing of weight respecting the question under consideration. For although tenants in common are not at liberty to assail the common title by which they all hold, they may deal with each other touching their respective interests: Freeman's co-tenancy, 165. While Bissell, Foss and Hunter, and the Handley party were all bound to maintain the co

com

mon title, each was at liberty to purchase from the other in the same manner as a stranger might purchase from any or all of them: Alexander v. Kennedy, 3 Grant's Cases, 380. It has never been claimed that a purchase by one co-tenant of the interest of another would inure to the benefit of all who should retain their interest, and certainly there is nothing in the relations of such owners to support that doctrine.

The limitations to individual action on the part of the mem bers of a partnership in respect to those matters which may or may not be within the scope of the partnership business are, in many cases, not easily defined. We know, however, that fidelity to the partnership is the highest duty of its members, and that no member can be allowed to turn the partnership concerns to his own account. And whenever a member is found to be seeking a private advantage from partnership dealings, the courts are prompt to correct such an abuse of the confidence reposed in him by his associates. A familiar application of the principle is found in the cases cited by counsel, in which it is held that a partner can not in his own name renew the lease of the premises used by the firm. In New York the doctrine was applied to a case in which the renewal did not begin until the copartnership had expired by its own limitation, and the reasons assigned by the court are entirely satisfactory: Mitchell v. Reed, 61 N. Y. 123. The position assumed in these cases is that the renewal is auxiliary to the original lease, and so far connected with it that it shall be regarded as a part of it; and as the original lease was owned by the firm, any attempt by a member to appropriate the renewal to his own use is a direct conversi n of the prop erty of the firm. In other words, the doctrine is, that a mem. ber of a firm shall not be permitted to take unto himself the property of the firm, and the renewal of the lease whereof the firm holds the original is such property, and therefore it is protected for the use of the firm. To invoke the principle, however, it is obviously necessary to show that the malversation was of the partnership funds or effects, for if it be otherwise no member of the partnership can complain.

And this brings us to inquire, what right or interest of the copartnership of which he was a member was used or asserted by Foss in making the purchase of his associates' interest in

the mines? Is it true that in a mining partnership the firm has a right of pre-emption as to the interests of retiring partners in the mines? The answer is not doubtful. Where the partnership is formed expressly to work mines, and the mines are held by lease, the lease and renewal of it is, as the courts have held, partnership property. But in the case at bar the partnership arose out of a community of ownership in the mines, and the parties were in a very large sense involuntary associates. They came together upon the ground that they were tenants in common of the mines and not upon any agreement to engage in the business of mining. Indeed, they had no agreement whatever, respecting their joint operations, but they stood solely on their ownership of the property, in consideration of which they united for the purpose of working it. They were partners in the working, but not in the ownership of the mines, and their firm was a thing of the hour without hope of existence. In that kind of association it can not be said that there is in the collective body a right to acquire new interests which its members are bound to respect. The object of the partnership was to take out ore, and in all things directed to that end, each member owed allegiance to the company. Beyond that, they were entirely free to act touching their interests in the mines, as well as other individual property. Each member held his interest in the mines in his own right, with power to dispose of it as he sh uld think proper, and each was free to deal with his associate or with a stranger in res ect to such interest. So, also, each member was at liberty to buy from his associates, and thus enlarge his interest in the whole property without reference to the partnership relation. On the whole case no reason can be found for saying that the purchase of the Handley interest inured to the benefit of Bissell, or that he had any share in it. If in making it Foss violated his promise to Bissell, in that there was moral wrong, and possibly there may be some remedy for the breach. But it can not be said that by such promise only, Bissell, who furnished no part of the purchase money, acquired an interest in the mines.

The money will be awarded to Foss and Hunter.

HIXON V. PIXLEY.

(15 Nevada, 475. Supreme Court, 1880.)

Verdict upon conflicting evidence not disturbed. In an action of trover against P. and McC. as copartners to recover $23,390 for the alleged wrongful conversion of certain shares of mining stock, the plaintiff relied upon two grounds to sustain the action against P. 1st. That he was a partner at the time of the alleged conversion. 2d. That if not a partner in fact, he suffered himself to be held out to the world as such, and thereby became liable to plaintiff. There was a verdict and judgment for plaintiff, and P. appealed upon the ground that the evidence was insufficient to support the verdict. Held, that there being a substantial conflict in the evidence upon the first point, the verdict of the jury should not be disturbed; and that the evidence was clearly sufficient to sustain the verdict upon the second point.

Holding out as partner after notice of dissolution. If a retiring partner,

after notice of dissolution published, continues to hold himself out to the world as a partner, he must, before he can avail himself of such publication, prove that knowledge thereof came to the party asserting his liability.

Idem Old and new customers. If one partner, after the dissolution of the copartnership, consents that his name shall be held out to the world as a partner, all persons, whether new customers or not, will be presumed to deal with the firm upon this partner's credit as well as upon the credit of the other partner.

66

1 Belief of plaintiff that retiring member was still a partner. If plaintiff was aware of the previous copartnership, and had no knowledge of the dissolution, and was misled by the acts of the retiring partner, and induced to deal with the firm upon the belief that the retiring partner was still a member of the firm, it would not be incumbent upon her to show that she would not have so dealt but for that belief." Lapse of time as affecting knowledge of dissolution. The defendant asked the court to instruct the jury, that in determining whether plaintiff was ignorant of the dissolution, they should take into consideration, among other things, "the lapse of time occurring after the alleged dissolution, and prior to plaintiff's dealings with McConnell & Co." The court struck out these words. Held, upon a review of the entire in. struction, that the jury were not misled to the prejudice of the defendant. (Beatty, C. J., dissenting.)

Allegation of value material. The allegation of value in an action of trover is a material averment. If not denied it need not be proven. Time of conversion immaterial. The allegation as to the time of conversion, in an action of trover, is immaterial.

Instruction as to notice and demand. The instruction as to notice and demand, as modified, read as follows: "If you find from the evidence

1 Martyn v. Gray, 14 Com. B. N. S. 824; Carter v. Whalley, 11 M. R. 262; Vice v. Fleming, Id. 241.