cordance with the terms of the agreement. The defendants resisted the suit, upon the ground that the agreement was within the statute of frauds, and could be established only by an instrument in writing; but the vice-chancellor overruled their objections and upheld the bill. In his opinion (p. 383) he uses the following illustration in support of his conclusion, which is peculiarly appropriate to the present case: "In order to try this question in the most simple manner, I will suppose the case to be the converse of what it is. I will suppose that the land purchased, instead of rising, had fallen in value, that a loss had been sustained, and that Hamilton and McAdam were the plaintiffs, seeking to compel Dale to contribute his proportion of the loss. If in this case the authorities would have enabled Hamilton and McAdam, by proving the partnership with Dale, and that the land was part of the partner ship stock and effects, to have compelled contribution from Dale, the same authorities will, upon like proof, support the present suit upon the principle-that of mutuality in remedies

which enables a vendor to recover the purchase-money in this court, though the remedy at law may be equally ade quate and more appropriate," and cites several authorities to the effect that in such a case the defendant would have been liable for contribution. The rule laid down in Dale v. Hamil ton, 5 Hare, 369, has since been generally followed, and although there are some decisions to the contrary, may now be said to be the prevailing rule upon that subject.

Irrespective of any decision, however, an agreement of this character cannot be said to contravene the provisions of the statute of frauds. It does not contemplate any transfer of land from one party to the other, or the creation of any interest or estate in lands. In one sense, the parties to such an agreement may be said to have an interest in the lands that are to be purchased under the agreement, that sense in which the beneficiary, under a trust for the sale of real estate, and payment to him of the proceeds of the sale, has an interest in the land; but it is only a pecuniary interest, resulting from the sale and a right to have the land sold, rather than an interest in the land itself. The statute of frauds does not prevent parol proof for the purpose of showing an interest in lands, but declares that an agreement by which an estate or interest in lands is to be created must be in writing. No interest or estate in the land is created by such an agreement, but by the subsequent acts of the parties under the agreement

rights are acquired in reference to the land that may be purchased in pursuance of the agreement which a court of equity will protect against any attempt to make the statute of frauds an instrument of fraud. A bill for the conveyance of the lands could not be maintained under such an agreement, but by reason of the acts of the parties thereunder an equity would be raised in their behalf which would be superior to the legal title held by him to whom the land was conveyed, and would control that title in subordination to this superior equity.

It is a familiar rule in equity that lands acquired by a partnership for partnership uses are partnership assets, and are treated in equity as personalty, whether the partnership was formed by oral or written agreement. The same principle should apply when the object of the partnership is to deal in lands, and the assets of the partnership with which the lands are to be purchased are made up of the skill and money which are respectively contributed by the partners as its capital. Upon proof of the existence of such a partnership, the rights and obligations of the respective partners should be determined upon the same principles and with the same results as in other partnerships.

The settlement of partnership accounts, and the conversion into money of the assets of the partnership, whether real or personal, and their division among the partners, has always been one of the functions of a court of equity, and that court never stops to inquire into the source of the title of such assets, or in whose name they are held. The question has frequently arisen in actions for the division of the proceeds after a sale under such an agreement, and it has been invariably held that the statute of frauds is no defense thereto: Bruce v. Hastings, 41 Vt. 380; 98 Am. Dec. 592; Benjamin v. Zell, 100 Pa. St. 33; Trowbridge v. Wetherbee, 11 Allen, 361; Babcock v. Read, 99 N. Y. 609; Coward v. Clanton, 79 Cal. 23; Reed on Statute of Frauds, sec. 727. See also Byers v. Locke, 93 Cal. 493; 27 Am. St. Rep. 212. Under such an agreement, it is invariably held that an action for the division of the profits can be maintained after they have been received, whereas if the agreement was invalid at the outset, it could not form the basis of such an action. If, however, the agreement was valid at its inception, it is not rendered invalid by the subsequent act of one of the parties, and although it cannot be changed into a different agreement, such as an agreement for the conveyance of the land, yet either party has the right to its

enforcement for the purpose of carrying out its original purpose, the division of the profits resulting from the speculation. The same principles are applicable in an action to subject land which has become a portion of the assets of such a partnership to a sale under the directions of a court of equity, with a distribution of the proceeds thereof according to the rights of the individual partners. This was the case presented and maintained in Dale v. Hamilton, 5 Hare, 369. The same procedure was upheld in Richards v. Grinnell, 63 Iowa, 44; 50 Am. Rep. 727; Bunnel v. Taintor, 4 Conn. 568; Hunter v. Whitehead, 42 Mo. 524; Bissell v. Harrington, 18 Hun, 81; Holmes v. McCray, 51 Ind. 358; 19 Am. Rep. 735; Coward v. Clanton, 79 Cal. 23. After the agreement for the purchase and sale has been executed by making the conveyance in accordance with such agreement, it cannot be objected that such conveyance could not have been compelled on account of the statute of frauds: Pico v. Cuyas, 47 Cal. 174. The statute of frauds has no application to an executed agreement.

That the agreement between the parties which is averred in the complaint, and the evidence given in support thereof, did not contemplate any transfer of the land, or of any interest therein, to the defendants, or either of them, but had for its object only a division of the profits and loss that would remain after its sale, is shown by a consideration of the averments of the complaint herein before presented, and also by the direction of Babcock to the plaintiff while negotiating the agreement, to "sell it off as soon as you can, pay up the debts, and divide the profits." It was not necessary for the plaintiff, in support of these averments, to produce written evidence of the agreement, but the agreement could have been established by his oral testimony; and the court erred in striking out the testimony that he gave in support of the agreement. The first question to be determined by the court was, whether there was a partnership, and that fact could be shown by general evidence. In Forster v. Hale, 5 Ves. 309, where the right to an interest in the leasehold of a colliery, claimed by virtue of a partnership with one of the lessees, was involved, and it was objected that by permitting parol evidence to establish such interest, an interest in real estate or a declaration of trust would be gained without any writing, in violation of the statute of frauds, Lord Loughborough said: "That is not the question: it is, whether there was a partnership; the subject being an agreement for land, the question is, whether there

was a resulting trust for that partnership by operation of law. The question of partnership must be tried as a fact, and as if there was an issue upon it. If by facts and circumstances it is established as a fact that these persons were partners in the colliery, in which land was necessary to carry on the trade, the lease goes as an incident. The partnership being estab lished by evidence upon which a partnership may be found, the premises necessary for the purposes of that partnership are by operation of law held for the purposes of that partnership." Under the same principles, if, in the present case, the court should find, upon sufficient evidence, that a partnership existed between the parties, the fact that they would have an interest in the land which forms a portion of the assets of the partnership would result by operation of law as an incident to such partnership, but this result would not constitute a reason for excluding parol testimony to establish the existence of the partnership.

For the error of the court in striking out the evidence of the plaintiff, the order and judgment are reversed, and the court is directed to grant a new trial.

BEATTY, C. J. (dissenting). I dissent. The complaint, in my opinion, shows no cause of action, and the evidence offered and stricken out by the court was of a parol contract, invalid under the statute of frauds.

PARTNERSHIP TO DEAL IN REALTY.— EVIDENCE TO ESTABLISH: See extended note to Page v. Thomas, 54 Am. Rep. 792-800. As to whether lands may become partnership property without any writing, see extended note to McCormick's Appeal, 98 Am. Dec. 197-201, and to Greene v. Greene, 13 Am. Deo. 646-648. See also Alkire v. Kahle, 123 Ill. 496; 5 Am. St. Rep. 540.

PARTNERSHIP REAL ESTATE is, in equity and for partnership purposes, to be treated as personalty: Rovelsky v. Brown, 92 Ala. 522; 25 Am. St. Rep. 83; Summey v. Patton, Winst. Eq. 52; 86 Am. Dec. 451, and note.

PARTNERSHIP-LAND, WHEN REGARDED AS FIRM ASSETS. As between partners, land treated by them as partnership property, especially if purchased and paid for with partnership money, is regarded as firm assets: Collner v. Greig, 137 Pa. St. 606; 21 Am. St. Rep. 899, and note; note to Goodman v. Gay, 53 Am. Dec. 589.

MORGAN V. SOUTHERN PACIFIC COMPANY.

[95 CALIFORNIA, 510.]

EXCESSIVE DAMAGES, AWARDING OF, GROUND FOR REVERSAL, WHEN. — When the amount of damages awarded in an action for negligence is obviously so disproportionate to the injury proved as to justify the conclusion that the verdict is not the result of the cool and dispassionate discretion of the jury, the verdict will be set aside as excessive. A verdict of twenty thousand dollars, in an action by a mother for the death of her daughter, two years old, alleged to have been caused by the negligence of the defendant, will be set aside as excessive, especially where the complaint alleges no special damage, and no evidence whatever is introduced or offered upon the subject of damage.

DAMAGES FOR DEATH OF RELATIVE LIMITED TO ACTUAL PECUNIARY INJURY SUSTAINED. — In an action to recover damages for the death of a relative, caused by negligence, the plaintiff does not represent the right of action which the deceased would have had if the latter had survived the injury, but can recover only for the pecuniary loss suffered by the plaintiff on account of the death of the relative; sorrow and mental anguish caused by the death are not elements of damage, and nothing can be recovered as a solatium for wounded feelings; and loss of society can only be considered for the purpose of estinating the pecuniary loss. It is therefore error, in an action by a mother to recover damages for the death of her minor daughter, to charge the jury that it is not limited by the actual pecuniary injury sustained by the plaintiff by reason of the death of her child. DEATH OF MINor Child, DamAGES RECOVERABLE FOR. - In an action by a parent for the death of a minor child, the main element of damage is the probable value of the services of the deceased until he attains his majority, considering the cost of his support and maintenance during the early and helpless part of his life.

LOSS OF SERVICE OF DECEASED Child need NOT BE ALLEGED IN COMPLAINT IN ACTION FOR HIS DEATH. - In an action by a parent for the death of his minor child, the complaint need not specially allege the loss of the services of the deceased. Such loss is not special damage, necessary to be averred, but is a natural and necessary sequence of the death.

E. L. Craig, Foshay Walker, Horace Hawes, and R. B. Carpenter, for the appellant.

Charles G. Lamberson, J. W. Ahern, and Lamberson and Taylor, for the respondent.

MCFARLAND, J. The parties to this action are the same as in Morgan v. Southern Pacific Co., 95 Cal. 501, this day decided, in which plaintiff recovered a judgment for fifteen thousand dollars for alleged personal injuries received by being thrown from the steps of defendant's car, which judg ment was by this court affirmed. When she fell from the steps of the car she had in her arms her infant daughter, aged about two years; nine days afterwards the child died from an