Osment v. McElrath.

contingent upon their success. Shortly after the dissolution the plaintiff removed to the State of Tennessee, and there engaged in the practice of the law, while the defendant remained and continued to practice his profession in the city of San Francisco. During the next two years, the defendant attended to the unfinished business of the firm, and disposed of most of it. He won some of the cases in which the fees were contingent and lost others. He collected fees which were earned before and others which were earned after the dissolution.

From early in 1875 until 1881 a correspondence was kept up between the parties about the business of the late firm and the division of the money collected by the defendant therefor.

In July, 1881, the plaintiff returned to this State, and on the 6th of August commenced this action for a settlement of the partnership accounts.

It is alleged in the amended complaint, "that upon the dissolution of the firm, as aforesaid, the defendant voluntarily undertook to attend to all the business, and to conduct all the litigation then pending or necessary, which had been intrusted to said firm to collect the fees and to wind up the old business of the firm, and to account to plaintiff for his share of said fees." That the business was substantially wound up, and according to the information and belief of the plaintiff, the defendant had received "the sum of about $20,000, for fees due from the business of the old firm on hand at the time of its dissolution," and had refused to pay to plaintiff any part of the fees so collected.

The defendant demurred to the complaint, and his demurrer was overruled. He then answered, and among other things, denied that he had "received since the dissolution of said firm the sum of $20,000 as fees or otherwise or any sum as fees or otherwise growing out of the old business of said firm in excess of $10,000." He subsequently filed an amended answer, and in that denied that he had received "any sum as fees or otherwise growing out of the old business of said firm in excess of $6,534.86," and he alleged that the action was barred by the provisions of section 339, subdivision 1, of the Code of Civil Procedure. The court below found that since the dissolution of the partnership the defendant had collected and received from the business of the firm, committed to his hands at the time of the dissolution, the gross sum of $7,144.86; that he had paid out of that sum for necessary costs and expenses the sum of $305; that the reasonable

Osment v. McElrath.

value of his services and labor in the conduct and management of the business so left in his hands was $2,000, and that the plaintiff's action was not barred by the statute of limitations. After deducting from the gross amount received $305, paid out for expenses, and $2,000 for value of services, judgment was entered in favor of plaintiff for one-half of the remainder, but without costs.

The defendant appeals from the judgment, and from an order denying a new trial, and assigns numerous errors.

[Omitting minor points.]

There is nothing in the point that the defendant's undertaking to wind up the business and to pay to the plaintiff his share of the fees was without consideration, and therefore void; nor in the further point, that as the business was not expected to be all wound up within a year, the agreement was within the statute of frauds. The business was intrusted to the firm, and it was the duty of both parties to conduct it to an end. This duty they owed to the clients and to each other, and it continued after the dissolution as to all unfinished business. But as between themselves they might divide the labor and the fees as they pleased; and it cannot be said, as matter of law, that because the defendant gratuitously undertook to do and has done all the work in particular cases, the plaintiff is therefore not entitled to any share of the compensation received in such cases; nor can it be said after the work is done that the defendant is entitled to claim all the compensation, because when he undertook to do it, it was not expected to be completed within a year. Doubtless the defendant might have refused to go on and attend to the cases alone, but he did not do so, and now the objection cannot avail him.

It is insisted for the defendant that the plaintiff is not entitled to any share in the fees which were contingent and were earned after the dissolution, and if he is entitled to some share, still the amount allowed him, in view of the labor and expenses of the defendant, was far too large.

It is evident from the correspondence which was carried on between the parties during all the time the work was being done by the defendant, that it was understood by both of them that the plaintiff was to share in the fees, and the only difficulty which finally arose was as to what that share should be. Thus, in a letter written to the plaintiff in January, 1877, the defendant says: "I am desirous of settling up our old business. Since you left here in

Osment v. McElrath.

November, 1874, I have collected various sums from the partnership business. In some instances the cases in which the collections were made had been terminated; in others some service had been rendered by us, and the payments were on account. In the first class of cases it is just to divide the amounts received by me since your departure. In the other class an equitable apportionment should be made."

The general rule is, that a partner is not entitled to any compensation for services rendered by him to the partnership (§ 2413, Civ. Code), and it applies after as well as before dissolution.

Collyer states the rule as follows: "As it is the duty of each partner to devote himself to the interests of the concern, to exercise due diligence and skill for the promotion of the common benefit of the partnership, it follows that he must do it without any reward or compensation, unless there is an express stipulation to that effect. And there is no difference in this respect, though the duties performed by the partners have been very unequal in value and amount."

"As the power of partners, with respect to rights created pending the partnership, remains after the dissolution, so also do their mutual obligation. It is therefore the duty of those who are appointed to wind up the affairs of the partnership to do everything for the utmost advantage of the concern. No partner can make any use of the property inconsistent with that purpose, nor in performance of this business, can he claim to himself any particular reward or compensation for his trouble." Coll. Partn. §§ 186, 199.

This is the rule of commercial partnerships, and as said by the Supreme Court of the United States, "there may possibly be some reason for applying a different rule to cases of winding up partnerships between lawyers and other professional men, where the profits of the firm are the result solely of professional skill and labor. No adjudicated cases however with which we are acquainted recognize any such distinction." Denver v. Roane, 99 U. S. 359.

We are not called upon to say whether the distinction referred to should have been made in this case, as it was made by the court below, when it allowed the defendant $2,000 for his services, and the plaintiff acquiesces in the allowance.

We are satisfied that the plaintiff was entitled to share in the fees collected for the unfinished business, and in view of the con

Osment v. McElrath.

flicting testimony as to what the defendant's services were reasonably worth, we cannot say that the apportionment was not equitable and just.

On the whole, we can see no error in the record prejudicial to the appellant, and the judgment and order should be affirmed. SEARLS, C., concurred; FOOTE, C., did not participate in this

case.

The COURT.-For the reasons given in the foregoing opinion, the judgment and order are affirmed.

Hearing in banc denied.

Judgment affirmed.

A city is not liable for an injury to private property by the overflowing of a sewer, caused by its incapacity, resulting from a mere error of judgment not amounting to gross negligence.

A

CTION of damages for injury by overflow of a sewer.

The

opinion states the case. The defendant had judgment below.

J. E. Williamson, for appellant.

J. B. Rucker, for appellee.

ELLIOTT, J. The appellant seeks a recovery against the city of Evansville for injuries to his property caused by overflows, which he charges resulted from the wrongful and the negligent acts of municipal authorities. The general verdict was for the appellee, and with it the jury returned answers to interrogatories submitted to them.

It is found by the jury, in answer to special interrogatories, that there was no negligence in devising the plan of the sewers or in constructing them, and as it is to these sewers that the appellant