the provision in the statute that the defendant, "when required," shall transport, free of charge, imposes on the state, or those made agents of the state, a special request or demand in each case that the person or article be carried free. It has been insisted the words of the statute are not the equivalent of "when required," or "demanded;" that they only mean when "necessary,” -when it is for the public interest, or, in a larger sense, the public convenience. But, the scope and purpose of the act being considered, it could not have been contemplated that the defendant should become liable in case its officers or agents should charge a fare or freight, in ignorance of and without any notice that the man or article was of a class mentioned in the statute. So to hold would be unreasonable in itself, as it might set a trap for defendant, and would make its liability depend on an event not in the contemplation of the law-makers. It has been said that "required" cannot mean "requested," because there was and has been no legislation providing any special mode by which a request can be made by or for the state. But effect must be given to the language of the act which provides for a request or demand. By accepting the act and executing the agreement, the defendant consented to be bound by such reasonable request as is appropriate in the cases provided for. The defendant could disregard such reasonable demand only at its own risk, and would become liable on refusing to comply with it. Thus, if one claiming to be a public messenger, or the convoy of a convict or insane person, shall demand free passage, the defendant must inform itself of his real character, and for the purpose of ascertaining it may adopt reasonable rules and regulations. Practically, there can be little difficulty in carrying out the intent of the statute. Of course the defendant, under pretense of an investigation, cannot avoid its duty, or escape responsibility, by requiring unreasonable vouchers, or imposing conditions which will delay or interfere with the exercise of the right of a particular applicant. The averment that a defendant "although often requested," like the averment of a promise, is often made where the law implies a request or promise. It is an immaterial allegation. "In point of form there are in pleading two descriptions of request,--one termed a special request; the other the licet sæpe requisitus." 1 Chit. Pl. (16 Amer. Ed.) 541. Where the special request is not necessary, the licet sæpe requisitus is of no avail, and the omission of it will not vitiate the pleading. Quimby v. Lyon, 63 Cal. 395. This merely formal allegation cannot be substituted for a special request to be alleged and proved.

The objection that the complaint was ambiguous and uncertain was taken by demurrer, and the demurrer was sustained. The Code (Civil Proc.) contemplates one demurrer to a pleading, in which may be taken any or all of the objections enumerated in section 430. If a demurrer is overruled, it is a determination that the pleading is good as against all the objections to it; and if, on appeal, it appears that any of the objections were well taken, the judg ment is reversed. On the other hand, if any one of the objections taken is valid, and the demurrer is sustained below, the judgment based on the order sustaining it will be affirmed. Where the order sustaining or overruling the demurrer is general, the rule, cannot be questioned; and, as a general order is alone contemplated by the Code, any matter inserted in the order other than the decision for or against the demurrer is surplusage, and not to be regarded. In the case at bar the order is either a determination that the complaint is insufficient, or the issues of law made by the demurrer have never been determined. A decision in favor of the plaintiffs upon the supposed issues made by the objections other than the specific objection mentioned in the order cannot be implied. The party against whom an order is made sustaining a demurrer is not entitled to notice of the motive or reasoning which induced the judge to make the order. In considering the appeal from the judgment, we are to treat the order on demurrer as if it were itself directly appealable. In such case both parties could not appeal, since the party in whose favor the order v.18p.no.1-7

was made would not be injured by it. When one of several objections to a complaint is held valid, and the demurrer is sustained, and the plaintiff declines to amend, but stands upon the complaint as sufficient, he cannot be permitted to say here that an "opinion" of the judge below-or matter in the nature of an opinion inserted in the order-indicates that the judge made the correct order for a wrong reason. The question always is, ought the demurrer to have been sustained? Judgment affirmed.

We concur: PATERSON, J.; TEMPLE, J.

(76 Cal. 44)

v.

NOONAN . NUNAN. (No. 9,997.)

(Supreme Court of California. April 30, 1888.)

1. EVIDENCE-ADMISSIBILITY-PROOF OF FACTS FOUND BY THE COURT.

Where the court found all relevant facts which the judgment roll in a previous action, sought to be introduced in evidence, would have proved, such judgment roll was properly excluded.

2. PARTNERSHIP-WHAT CONSTITUTES-PURCHASE OF DECEASED PARTNER'S SHARE. The purchase of the share of a deceased partner does not of itself create a new partnership between the purchaser and the surviving partner, as the assets purchased are primarily liable to the payment of the claims of the partnership creditors, and to the balance of advances made by the surviving partner during its existence. It is merely a purchase of the residuum, and the purchaser in equity only becomes therein a tenant in common with the surviving partner.1

3. TRUSTS-ACTION TO ESTABLISH-PLEADING AND PROOF.

In an action to declare a partnership, for dissolution and an accounting, it appeared that plaintiff purchased the share of a deceased partner, but the assignment was made in the name of defendant, the surviving partner, and the property was used in the business. Held, the court finding no actual partnership, that defendant could not be charged with a trust so as to render himself liable to an accounting; no facts being alleged in the complaint constituting a trust, but, on the contrary, it being averred that the property should constitute assets of a partnership. Department 1. Appeal from superior court, city and county of San Francisco; H. REARDEN, Judge.

Thomas Noonan brought suit against Matthew Nunan to declare a partnership, a dissolution, and an accounting. Judgment for defendant. Plaintiff appeals.

O. P. Evans, J. C. Bates, and E. J. & J. H. Moore, for appellant. McAllister & Bergin, for respondent.

MCKINSTRY, J. The notice of appeal was served January 12, 1885, and filed on the 13th of the same month. The certificate of the clerk shows that the undertaking on appeal was filed on the 16th day of January, 1885. The motion to dismiss the appeal must be denied. If the facts found in the action, Odd Fellows' Bank v. Thomas Noonan et al., to the effect that the right, title, and interest of the estate of Armstrong, deceased, in the leasehold and its appurtenances were purchased from the administratrix, in the name of Matthew Nunan, but really by the plaintiff herein, who paid the whole purchase price therefor, for his sole use and benefit, (and the decree thereupon,) determined any fact which tended to establish a partnership between the parties hereto, the ruling of the court herein, excluding the judgment roll in that action, did not injure the appellant, because the court below found the same facts in the present action. The court found all the facts in this action which the judgment roll would have proved, so far as they are relevant to any issue herein.

In the complaint in this action it is alleged "that it was agreed and understood by and between him, this plaintiff, and this defendant, that if he, the

On the general subject of what constitutes a partnership, see Clift v. Barrow, (N. Y.) 15 N. E. Rep. 327, and note; Dame v. Kempster, (Mass.) 15 N. E. Rep. 927; Hendy v. March, (Cal.) 17 Pac. Rep. 702; Railway Co. v. Johnson, (Tex.) 7 S. W. Rep. 838.

said Thomas Noonan, would buy the said interest, [of Armstrong's estate.] he and the said Matthew Nunan would thenceforward be partners in the said business, and would conduct the same as such, in the same manner as the said Armstrong and the said defendant had done," etc. The court below found this averment not to be true, and there was a substantial conflict, at least, in the evidence bearing on the issue made by it, and the denial thereof. If it be assumed that there was a sale and conveyance of the interest of deceased in the leasehold which placed the legal title in an undivided one-half thereof in Matthew Nunan in trust for Thomas Noonan, the latter would perhaps be entitled, upon proper averments, to a decree directing a conveyance of said undivided one-half of the legal title to him, unless it appeared from the facts alleged and proved by the defendant that there were debts due from the former partnership, or from Armstrong to the former partnership, which rendered it necessary and proper that the leasehold should be sold, and its proceeds applied to the liquidation of such debts. But the leasehold and appurtenances were assets of the late partnership between defendant and Armstrong, which was dissolved by the death of the latter. It was the duty and right of the surviving partner to settle the affairs of such partnership, and the purchase by the plaintiff was of course subject to the application of the assets to the satisfaction of the creditors of the former partnership, and of the balance of advances, if any, made by defendant to the partnership during its existence. In equity it was a purchase of the residuum, if any there should be. Subject to a settlement of the partnership affairs, plaintiff became in equity tenant in common with the defendant in the property of the late firm. But the mere purchase of the interest of the estate in such property did not create a new partnership between the parties hereto.

It is insisted, however, that, conceding there was no conventional partnership, the subsequent use by defendant in his business of the property of which he and the plaintiff were owners as tenants in common, charged the defendant with a trust, and with the duty of accounting to the plaintiff for profits derived from such use. It was held in Heinlen v. Martin that where the defendant had the mere legal title to the land, and the plaintiff was entitled to the use thereof, and the defendant had excluded the plaintiff therefrom, and the suit was brought for a conveyance of the legal title, equity and justice demanded that, in analogy to the relief granted at law, the plaintiff should recover the "rental value" of the land from the time he demanded a deed, which in that case was the commencement of the suit. 53 Cal. 321. In the case at bar no demand was made for a conveyance of the plaintiff's alleged portion of the leasehold. On the contrary, the averments are that the leasehold constitutes part of the partnership assets. In Quackenbush v. Sawyer there was a specific agreement between the parties, substantially alleged and proved, that the defendant should account for moneys received from a third person for the benefit of himself and the plaintiff, (54 Cal. 439,) and the court there held that the mere joint ownership of property does not constitute a partnership. Stokes v. Stevens, 40 Cal. 391, was an action of replevin. The cases cited by appellant from 15th and 16th Vesey only redecide the established rules that partnership for an indefinite period may be dissolved by either partner at any time, and that, when there is a partnership, without any stipulation as to proportions, the partners are entitled to equal moieties. Peacock v. Peacock, 16 Ves. 49; Featherstonhaugh v. Fenwick, 17 Ves. 298.

No facts are alleged in the complaint herein from which would arise an implied or constructive trust with respect to the real property employed in the defendant's business. It is averred, on the contrary, that it was so used by him in accordance with an agreement that it should constitute assets of a partnership. If it be conceded that a trust may arise sometimes from the fact that property owned by a plaintiff and defendant, as tenants in common, has been profitably used by the defendant, and that, in such case, the latter may

be held to an account, the complaint is not drawn upon that theory, nor are facts alleged which justify a decree appropriate to such a supposed case. It is a cardinal rule in equity pleading that the allegata and probata must agree. Green v. Corillaud, 10 Cal. 332; Murdock v. Clarke, 59 Cal. 693. A party cannot be allowed to claim relief inconsistent with his pleading. Weil v. Posten, 77 Mo. 287; Gregory v. Nelson, 41 Cal. 278; Cummings v. Čummings, ante, 442; Carpenter v. Brenham, 50 Cal. 549; Burnett v. Stearns, 33 Cal. 549. The averment of the complaint is that the leasehold and the appu, tenances constitute the capital of the partnership formed by the plaintiff and defendant, and any accounting based on a finding of the fact of such partnership ownership must be upon different principles from an accounting based on the mere use of plaintiff's property by defendant. The purpose of the present action is to obtain a decree declaring a copartnership, decreeing its dissolution, and an account as incident to and consequent upon such dissolution. The court found there was no partnership. Its existence or non-existence was the main issue joined. There was no question presented by the pleadings in regard to a co-tenancy of those not partners, or in respect to the liability of co-tenants as such. As the appellant neither asked for the judgment which it is now claimed should have been entered in the court below, nor alleged facts upon which such a judgment could properly have been entered, he cannot here demand a reversal of the judgment which responded to the issues actually made and submitted to the trial court. Judgment and order affirmed.

We concur: SEARLS, C. J.; PATERSON, J.

NEWTON et al. v. CHILES et al.

(Supreme Court of California. Commissioners' decision. Department 2. Yolo county; C. H. GAROUTTE, Judge.

(No. 12,250.) April 30, 1888.)

Appeal from superior court,

G. P. Harding, for appellants. R. Clark, for respondents Glenn and White. F. E. Baker and C. P. Sprague, for respondents Newton, Armstrong, and Diggs.

BELCHER, C. C. This is an appeal from a judgment, and the case comes here on the judgment roll. The action grew out of a contract to construct a house, and was brought by material-men and laborers. The owners and contractors were made defendants, and the contractors filed a cross-complaint asking affirmative relief against their co-defendants. No good would be subserved by stating the facts more fully. The pleadings, we think, were sufficient. The findings are full, and cover all the issues. The conclusions of law and the judgment are warranted by the findings. We find no error in the record prejudicial to the appellants, and we therefore advise that the judgment be aflirmed.

We concur: FOOTE, C.; HAYNE, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment is aflirmed.

(76 Cal. 60)

Cox v. MCLAUGHLIN. (No. 12,189.)
(Supreme Court of California. May 1, 1888.)

1. ASSUMPSIT-WORK AND LABOR-PLEADING-AMENDMENT.

In an action for services rendered in grading a ra road, where the complaint is for the recovery of contract rates on the origina! contract, -profits which would

have been made, etc., had not plaintiff been prevented from finishing the work by defendant's default,-it is proper to permit an amended complaint to be filed, stating no new facts constituting a new cause of action, but seeking to recover the value of the work actually done upon a quantum meruit.

2. SAME-QUANTUM MERUIT-RIGHT TO INTEREST.

In an action on a quantum meruit for the actual value of work done, etc., in grading a railroad, where the amount, character, and value of the services rendered, and material furnished, are uncertain, and can only be established by a verdict or the findings of a court, and are not susceptible of ascertainment either by computation, or by reference to market rates, or other known standard, plaintiff is not entitled to recover interest prior to verdict or judgment.

TEMPLE, J., dissenting.

In bank. Appeal from superior court, city and county of San Francisco; J. F. SULLIVAN, Judge.

Action by Jerome B. Cox against Kate D. McLaughlin, executrix of the last will and testament of Charles McLaughlin, deceased, for the actual value, under a quantum meruit, of services rendered and material furnished under a contract between plaintiff and Charles McLaughlin for grading a railroad, a portion of the Western Pacific Railroad route. Judgment for plaintiff. Defendant appeals.

Wilson & Wilson, (L. D. McKisic, of counsel,) for appellant. D. M. Delmas and Henry E. Highton, for respondent.

PER CURIAM.

This cause has been before this court several times on an appeal, and it is unnecessary to restate the facts. The history of the case may be found in the following volumes of our reports: 44 Cal. 18; 47 Cal. 89: 54 Cal. 605; 52 Cal. 590; 63 Cal. 196. It is sufficient to say that in 1864 Charles McLaughlin, now deceased, entered into a contract with the Western Pacific Railroad Company to grade the road-bed of its railroad from near the city of San José to Sacramento, a distance of 123 miles, and to construct all the superstructures, etc., necessary to place the road in complete running order, for the sum of $5,400,000; and that in January, 1865, said McLaughlin made a contract with the plaintiff, Cox, and his associates, by the terms of which the latter were to grade that part of the road which lies between San José and Stockton, a distance of seventy-four and a quarter miles, to do the masonry work and all things necessary for placing the cars, ties, and iron equipments on the track, for which McLaughlin was to pay them the sum of $900,000. Cox afterwards became the assignee of all his associates. Payments were to be made by McLaughlin to Cox as the work progressed, at amounts to be fixed by the estimates of the chief engineer of the said Western Pacific Railroad Company. Cox finished the first twenty miles, and part of the twenty-first mile, and received certain payments; but, McLaughlin then failing to make further payments as provided in the contract, Cox was unable to proceed further with the work through want of funds, and abandoned it. Upon the former trials in the court below, (except the first, when an attempt was made to enforce a mechanics' lien,) Cox persistently proceeded upon the theory that the failure of McLaughlin to make the payment due operated as a technical "prevention" of a compliance with the contract by Cox, and that, therefore, the latter could recover contract rates on the original contract, profits which he would have made, etc. This position was held repeatedly by this court to be untenable; and after the case was last here he amended his complaint in the court below so as to aver a claim for the value of the work actually done as upon a quantum meruit. The court below tried the case without a jury; found the value of the work, over and above all moneys paid, to be $98,228.49, and gave plaintiff judgment for said sum, with interest at statutory rates from June, 1866, the time of the failure of McLaughlin to make said payment. From this judgment, and from an order denying a new trial, defendant appeals. Said Charles McLaughlin having in the mean time died, his executrix, Kate D. McLaughlin, was substituted as defendant. On