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further expressly provided that he is not a copartner and has no interest whatever in the assets of the business, the relationship of the parties is not that of a partnership, but that of employee and employer.

[2] CLAIM AND DELIVERY-PLEDGE AS SECURITY-DENIAL OF INDEBTEDNESS-RIGHT TO ACCOUNTING-PLEADING.-Where a plaintiff sues in claim and delivery for property pledged as security for an indebtedness, alleging that it has been paid or that nothing is due thereon, and defendant contents himself with a mere denial thereof, he is in no position to assert that an accounting should be had as a condition of plaintiff's right to recover the chattels. If an accounting, other than such as is incidental and necessary to a determination of the issue as to the alleged indebtedness, is deemed necessary by defendant, then it should, in its answer, set up the facts upon which a demand there for should be based.

APPEAL from a judgment of the Superior Court of Orange County. W. H. Thomas, Judge. Affirmed.

The facts are stated in the opinion of the court.

Albert M. Norton, Chas. Greenberg and H. G. Ames for Appellant.

F. C. Drumm and H. C. Head for Respondent.

SHAW, J.-In this action for claim and delivery for certain personal property a judgment was entered in favor of plaintiff, from which defendant appeals.

It appears that defendant was the owner of a mercantile business under the name of the Orange County Supply Company, and on June 21, 1915, it entered into a written agreement with plaintiff, by the terms of which it was provided that plaintiff should, in addition to his services as manager of the enterprise, furnish the livestock, wagons, trucks, and equipment with feed and oil, the use of which was required in conducting the business, and as full compensation therefor, including his services, he should receive one-half of the net proceeds derived from the business, subject to the termination of the contract at any time by defendant; it being further expressly provided that he was not a copartner and had no interest whatever in the assets of the business of which defendant was declared to be the sole proprietor. The contract also provided that

plaintiff should execute a bond to defendant in the penal sum of two thousand five hundred dollars.

The subject of the action was five head of horses, two wagons, two sets of harness, and one set of wagon scales, all of which, except the last-mentioned chattel, were, as alleged in the complaint, made the subject of a bill of sale exccuted by plaintiff to defendant on July 1, 1915, in lieu of and instead of the bond, provision for which was made in the contract.

In accordance with the allegations of the complaint, the court found that the transfer of title to the property was in pledge to secure any indebtedness of plaintiff to defendant and arising out of the former's conduct of the business; that on December 31, 1915, the relation existing between the parties under said contract was terminated; that plaintiff at all times was in possession of the property until about January 14, 1916, when defendant wrongfully took possession of the same; that at said time plaintiff was not indebted to defendant in any sum whatsoever. No attack is made upon these and other findings, which clearly support the judgment.

Conceding, if nothing was due from plaintiff to defendant, the latter's act in taking the chattels was wrongful, appellant's sole contention is that the business relations of the parties was in the nature of a copartnership in that it was a joint adventure, and hence the action should have been one for an accounting instead of a claim and delivery, citing Dukes v. Kellogg, 127 Cal. 563, [60 Pac. 44]. [1] The relationship of the parties was not that of a partnership. Not only is such theory excluded by the express language of the contract, but under the terms thereof plaintiff had no interest in the business nor its assets; nor could he be held liable by the creditors of the corporation for anything whatsoever. He was merely defendant's employee, whose compensation was one-half of the net proceeds derived from the business. In 1 Cyc., page 407, it is said: "Under a contract whereby a person is to have a share in the profits of a transaction, whether his remedy may be assumpsit or must be account depends upon whether he had any property in the chattels, and so in the specific money for which they are sold, or whether the form of contract is only a mode of determining compensation for labor. In the latter

case the remedy is by an action of assumpsit." Nevertheless the nature of a transaction, as shown by the pleadings, may be such that, in ascertaining whether or not anything is due, there must be an inquiry in the nature of an accounting. (Butler v. Union Trust Co., 178 Cal. 195, [172 Pac. 601].) [2] Where, as here, however, a plaintiff sues in claim and delivery for property pledged as security for an indebtedness, alleging that it has been paid or that nothing is due thereon, and defendant contents himself with a mere denial thereof, he is in no position to assert that an accounting should be had as a condition of plaintiff's right to recover the chattels. If an accounting, other than such as was incidental and necessary to a determination of the issue as to the alleged indebtedness, was deemed necessary by defendant, then it should, in its answer, have set up the facts upon which a demand therefor should have been based. Notwithstanding the clear-cut issue joined, the defendant was entitled to produce any evidence tending to controvert plaintiff's allegation. (Walsh v. McKeen, 75 Cal. 522, [17 Pac. 673].) Having this right and in the absence of any showing that it was precluded from introducing such evidence, we must assume the inquiry to have been sufficiently broad to justify the court in the conclusion reached.

In its answer defendant alleged the pendency of another action for an accounting of the affairs of said parties growing out of their relations created by the contract. For what purpose this allegation was inserted in the answer is not made to appear. However, it was permitted to introduce. a copy of the complaint in an action brought by plaintiff against defendant to recover the sum of $1,327.32, alleged to be due him in part as his share of the net profits of the business. Even if the pendency of the suit as alleged constituted a defense to the action, the proof offered wholly failed to sustain the allegation, since it appears from the complaint offered in evidence the action therein was not for an accounting, but in assumpsit to recover money alleged to be due plaintiff from defendant.

In our opinion, the relation between the parties did not constitute a copartnership. Nor, as a condition of maintaining the action, are any facts stated in the pleadings requiring, as in the case of a partnership, an accounting

other than that which the court made in determining the issue as to indebtedness.

The judgment is affirmed.

Conrey, P. J., and James, J., concurred.

[Civ. No. 3028. Second Appellate District, Division Two.-December 17, 1919.]

J. W. DRIPPS, Appellant, v. THE ALLISON'S MINES COMPANY (a Corporation), et al., Respondents.

[1] MINING LAW-DAMAGE BY TAILINGS TO LOWER CLAIM-RIGHT OF PRIOR UPPER LOCATOR.-The first locator on mining ground has no right, by custom or otherwise, to allow tailings to run free in the gulch and render valueless the mining claims of subsequent locators below him.

[2] ID.-CARE EXERCISED BY UPPER LOCATOR IMMATERIAL-LIABILITY FOR INJURY.-Where the land of the lower locator is actually invaded by "tailings," "slickens," or other material from the claim of the upper locator, it makes no difference how carefully the latter may have worked his mine. His liability does not depend upon negligence in the construction or use of his property. If his work in fact injures the property of another he is none the less liable, be he ever so cautious or careful to avoid injurious consequences. [3] ID. LIABILITY FROM STONES ROLLING FROM TRAIL.-Such rule respecting the liability of the upper locator for tailings, etc., carried down upon the claim of a lower locator applies with equal force to rocks and boulders caused to roll down the steep sides of a gulch by reason of the construction of a trail by the upper locator around the claim of the lower locator, thereby endangering the life of any person who might attempt to work the claim, and seriously impair, if not utterly destroy, its value for mining purposes. [4] ID. RIGHT TO DIVERT WATERS-PRIORITY-REASONABLENESS OF USE —QUESTION OF FACT FOR JURY.-The right to mine on public lands and the right to divert and use for mining purposes the waters of a stream that runs wholly through the public domain stand upon an equal footing, subject to the principle qui prior est tempore, potior est jure; but the upper locator, though subsequent in time, and though, for that reason, his is a subordinate right, may, nevertheless, make reasonable use of the waters of the stream, the reasonableness to be determined by the jury upon the facts and circumstances of each particular case.

[5] ID. LOCATION OF CLAIM-COMPLIANCE WITH REVISED STATUTESCONFORMITY TO PUBLIC SURVEY.-Locations of mining claims upon unsurveyed lands, as well as those upon surveyed lands, are within the purview of section 2331 of the United States Revised Statutes. If the lands have been surveyed by the government, the location, in its exterior limits, must conform to the public survey, if reasonably practicable; and if the land be unsurveyed, the location, as reasonably as practicable, must be rectangular in form, with eastand-west and north-and-south boundary lines, and otherwise approximating conformity to the public survey system within the limits of practicability.

[6] ID.-CONFORMITY WITH PRIOR SURROUNDING LOCATIONS.-The conformity requirement of the federal statute does not require a placer locator to conform his location to legal subdivisions of the public surveys and the rectangular subdivisions thereof, when such requirement would compel him to place his lines on other prior located claims. It is not essential that his claim conform with the United States system of public land surveys when it is sur rounded by prior locations.

[7] ID.-MAKING OF SURVEY AND PLAT NOT ESSENTIAL TO VALID LOCATION. The plat and survey referred to in the provision of section 2331 of the Revised Statutes that "where placer claims cannot be conformed to legal subdivisions, survey and plat shall be made as on unsurveyed lands," are the plat and survey to be made and filed when the application for a patent is made, and are not essential to the perfecting of a valid location.

[8] ID. FAILURE TO RECORD LOCATION NOTICE-FORFEITURE OF CLAIM. Notwithstanding the failure of a locator to record the location notice within the thirty days prescribed by section 1426d of the Civil Code, he does not for that reason forfeit his mining claim or his possessory right thereto, but has such right to the ground monumented and staked by him as entitles him to relief against any unlawful trespass thereon.

[9] ID. ACTUAL NOTICE OF POSSESSION UNDER CLAIM AS LOCATORSUPERIORITY OF LOCATION.-Notwithstanding the failure of a locator to record his location notice within the time prescribed by section 1426d of the Civil Code, he acquires not only a right of possession which he does not forfeit merely because of his neglect to make a time record, but a location that, if imperfect, will, nevertheless, be superior to any location on the same ground that persons having actual notice that he is in possession of such claim, asserting a right thereto as a locator thereof under the United States mining laws, might subsequently attempt to make.

APPEAL from a judgment of the Superior Court of Los Angeles County. E. T. Zook, Judge Presiding. Reversed.

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