when it broke plaintiff fell. No causal relation between these facts and occurrences is alleged. The criticism upon the complaint is just, and, if the points had been made upon a special demurrer, would have been sustained. But after verdict the pleading must be deemed sufficient to support the judgment.

The case of Smith v. Buttner, 90 Cal. 95, 27 Pac. 29, is not authority for the defendants. In that case the court granted a motion, made by the defendant, for judgment upon the pleading, which motion was based upon the proposition that the complaint did not state a cause of action. The action was by a tenant against her landlord. She charged that her landlord failed to provide a proper entrance to the house, and in endeavoring to pass over it, without any lack of due care on her part, she was injured. If her injury resulted from the fact that the premises were out of repair, and she knew of the improper condition of the premises, her remedy was to act under sections 1941 and 1942 of the Civil Code. The house was being raised while she occupied it, and the complaint did not show that the injury resulted from the work being done.

Plaintiff contended that the reefing pennant was rotten, and that it broke, to his injury, and that in this respect defendants failed in their duty as his employers to provide safe appliances with which to do his work. These positions were controverted by the defendants, who, against the protest of plaintiff, induced the court to submit to the jury certain special issues, upon which the jury found, in addition to their general verdict, in favor of plaintiff. Some of these special issues refer solely to probative facts upon which the court was not bound to find, and the propriety of submitting such matters to the jury may be doubted. To these questions, however, in addition to the regular issues in the case, the evidence was addressed. It is objected that the court erred in overruling defendants' objection to the question, "How can it be determined, Mr. Ericson, whether a rope has become rotten and unsound?" It is said this is not a proper subject for expert evidence. Opinion evidence is not always objectionable, even from those who are not experts. The exceptions have been often noticed. Witnesses are constantly asked as to distances, as to conditions and manner, when the answers must necessarily consist in opinion. In this case one question in controversy was whether the defendants had been negligent in furnishing proper rope and tackle. This depended to some extent upon the question whether the defect was discernible. The question might have been in different form, but it was proper to inquire whether the defect could have been discovered by the use of ordinary diligence, which was really what was done.

It is next contended that the court erred in allowing the witness to relate a conversation with the captain after the accident.

The witness stated in response to the question that the captain examined the broken rope, and said, "That looks pretty bad." Plaintiff contends that this remark was part of the res gestæ. But this view cannot be sustained. It was not a spontaneous remark, made dum fervet opus, and a part of the occurrence, but a judgment pronounced after the event. Nor was it a remark made by a servant or agent within the scope of his employment. The master of the vessel had no authority to make an admission of culpability for the owners of the ship after the event. A remark before the accident, showing that the master knew of the defects in the rope, would stand upon a different basis. This ruling was erroneous, and may have been injurious. Because there was other competent evidence tending to prove the same fact, and which would have been sufficient to sustain the verdict, does not show that the error was not prejudicial. It bore upon a controverted fact, and we cannot say how the jury would have determined the matter but for the testimony. It was important, and, if the jury took the same view of it which counsel for plaintiff present here, they considered it an admission which bound the owners. I think this was prejudicial error, which will necessitate a reversal.

Some further objections were reserved to rulings in regard to the admission of evidence. The propositions involved will not necessarily recur upon a retrial, and therefore they need not be considered.

Defendants complain of the failure of the court to give certain instructions asked by them. Quite a number of them have reference to the proposition that the owners were not insurers, and were only bound to the use of reasonable diligence in providing proper appliances and in manning and rigging the ship. On all these points the jury were fully instructed, and the instructions given were as favorable to the defendants as they could have been. The other instructions asked were properly refused. There would have been no excuse for instructing the jury, as requested, that, if the plaintiff did not select a safe place to work, he could not recover. There is no evidence which tends to show that he selected the place to do his work, but the contrary. If it was not safe, it was not his fault. It would have been gross error in this case to have instructed the jury that when a machine not obviously dangerous has been in daily use for a long time, and has uniformly proved safe and efficient, its use may be continuous without imputation of negligence. A similar proposition may be maintainable when some particular device or pattern is compared to another which it is claimed affords a greater degree of safety; but when it has reference to a particular instrument it cannot be a proposition of law, and, as an argument, it seems absurd. If possible, it would

have been still worse had the court given the instruction that plaintiff could not recover unless defendants knew, or ought to have known, of the defect, and the plaintiff had not equal means of knowledge. The employé is not required to use any degree of care or diligence to discover defects. He will be held to have assumed the risk only when he knew, and will be held to have known when the defect was so obvious that he must have known, or simply refused to open his eyes and see, or when he was put upon inquiry by some discovery or suggestion of danger which it was gross carelessness for him to neglect. In Magee v. Railroad Co., 78 Cal. 437, 21 Pac. 115, this court said: "It has been often said that the master is not liable for defects in such things to a servant whose means of knowledge thereof were equal to those of the master. But this is an erroneous statement. The master has no right to assume the servant will use such means of knowledge, because it is not part of the duty of the servant to inquire into the sufficiency of these things. The servant has a right to rely upon the master's inquiry, because it is the master's duty so to inquire; and the servant may justly assume that all these things are fit and suitable for the use which he is directed to make of them."

Defendants charge that some of the findings of the jury in the special verdict are entirely unsupported by the evidence. As a new trial is awarded on other grounds, this proposition need not be considered. The order is reversed, and a new trial awarded.

PRINCE et al. v. LAMB et al. (S. F. 1,979.) (Supreme Court of California. March 17, 1900.) COMPLAINT ACCOUNTING SPECIFIC PERFORMANCE EQUITABLE JURISDICTION PARTNERSHIP - MINING PARTNERSHIP PLEADING SPECIFIC PERFORMANCE-JUDICIAL NOTICE-APPEAL AND ERROR. 1. A complaint alleged that plaintiffs furnished defendant means to go to Alaska to prospect for mining claims, and that defendant agreed that plaintiffs should have an undivided one-half of any discovered, together with onehalf of net proceeds of minerals mined by defendant from such claims after one year from the date of the agreement. The complaint further alleged that defendant discovered certain mining claims, and had sold some of them; that said claims were worth a sum stated, and that defendant had mined therefrom minerals worth a certain sum; that defendant refused to convey any part of said claims to plaintiffs. or to account to them. The complaint prayed for an accounting as to minerals mined and money received, and that defendant be required to convey to plaintiffs an undivided one-half interest in any claims owned by him. and be restrained from conveying any of said mining claims pending the action. Held an equitable action.

2. Civ. Code, § 2511, provides that a mining partnership exists between two or more persons who own or acquire a mining claim for the pur60 P.-44

pose of working it, and actually engage in working the same. Civ. Code, § 2395, defines a partnership to be the association of two or more persons to carry on business together and divide the profits. Plaintiffs furnished defendant means with which to go to Alaska to locate mining claims. Defendant agreed that plaintiffs should have an undivided one-half of all mining claims located, together with one-half net proceeds of all minerals mined therefrom after the first year. It was also agreed that, in case defendant discovered any valuable claims, he should notify plaintiffs, and they should thereupon go to the place where defendant had located said claims, and assist in working them, they to furnish one-half the labor and expense thereof; and said plaintiffs to be owners of an undivided one-half of any claims so located, and to have one-half the minerals mined therefrom. Held that, though the contract may have contemplated the formation in the future of a mining partnership, it did not constitute a co-partnership which commenced on defendant's starting for Alaska, so as to entitle plaintiffs to an accounting, where defendant refused to let plaintiffs work claims discovered by him.

3. Under Civ. Code, §§ 2477-2485, providing for the creation of special partnership by signing and filing an acknowledged certificate of the nature thereof, a complaint which does not allege that such a certificate has been made and filed does not allege the existence of a special partnership.

4. A complaint which alleges that plaintiffs furnished defendant with a grub stake, to enable him to go to Alaska to locate and acquire mining claims, under an agreement that plaintiffs should have one-half the mines so located, and that he did go, and acquired certain valuable mining claims, does not allege that defendant acquired the said mining claims by means of the grub stake so furnished by plaintiffs, as is necessary to entitle the latter to a share therein.

5. Civ. Code, § 3391, provides that a specific performance cannot be enforced against a party to a contract if he has not received an adequate consideration for the contract, or it is not as to him just and reasonable. A complaint alleged that plaintiffs furnished defendant with $50 as a grub stake, and that he agreed to go to Alaska and locate mining claims under an agreement that plaintiffs should have one-half of all claims so located, and that defendant did locate certain claims of great value, and prayed that he be decreed to convey an undivided one-half interest therein to plaintiffs. Held, that the complaint, in the absence of any allegations as to what the claims had cost defendant, was demurrable on the ground that the consideration was inadequate.

6. In an action by one who has furnished another money as a grub stake to go to Alaska to locate mining claims, for specific performance of an agreement that the party furnishing the funds should be entitled to one-half the claims located, where the expense of the trip is not shown, the court will take judicial notice that $50 is not an adequate consideration to entitle plaintiffs to specific performance of a contract giving him one-half the fruits of so toilsome and expensive a journey and the expense of locating claims.

7. Plaintiffs are not entitled to a reversal of a judgment sustaining a demurrer to their complaint on the ground that it does not give them leave to amend, where it does not appear that they made any request to amend.

Commissioners' decision. Department2. Appeal from superior court, city and county of San Francisco.

Action by N. R. Prince and others against Charles Lamb and another for an accounting, and to compel specific performance of a con

tract. From a judgment in favor of defendant Lamb, plaintiffs appeal. Affirmed.

Brown & Newby and Sawyer & Burnett, for appellants. Hall McAllister, for respondents.

GRAY, C. This in an appeal from a judgment following an order sustaining a demurrer to the complaint without leave to amend. The action is against the defendant Lamb. Smith was made a defendant because he was out of the United States, and his consent to become a plaintiff could not be obtained. The substance of the complaint necessary to be stated is as follows: That in the year 1896, in the city of Los Angeles, the plaintiffs and defendant Smith agreed to and did furnish said defendant Lamb with $50 ($10 each) "as a grub stake to enable him to go to Alaska, or the Northwest Territory, Canada, to prospect for gold and other precious metals, and to locate and acquire mines and mining claims"; that, in consideration thereof, Lamb agreed to go to said territory to prospect for gold and other precious metals, and that plaintiffs and said Smith should have an undivided one-half of any mines or claims located or acquired by said Lamb, together with a like one-half of all the minerals that Lamb should extract therefrom after the end of one year from the date of the contract, and after deducting therefrom the necessary expense of mining the same; and that defendant Lamb would account to and pay over to them the said one-half of said minerals. It was also alleged that it was agreed between the parties that, if Lamb should be successful in locating or acquiring any mines or claims of value, or thought to be of value, he should notify the other parties at once by letter, and as soon as possible thereafter they should go to said territory, and assist in working the same, furnishing one-half the labor and expense thereof; and said plaintiffs and said Smith were to be the owners of an undivided one-half of any mines or mining claims so located or acquired by Lamb, and were to have one-half of all the minerals thereby extracted. It is further alleged: That in pursuance of said agreement, and while the same was in full force and effect, Lamb went to said territory, and located certain mines and mining claims, and notified the plaintiffs and Smith thereof by letter, instructing them to come and assist him in accordance with said agreement; and that as soon thereafter as possible plaintiffs Prince, Peterson, Holloway, and defendant Smith went to Dawson, Canada, and found that Lamb had disposed of some of the mines acquired by him, and refused to allow them to assist him in working the mines and mining claims he then owned, and refused to account for or pay over to them any part of the minerals extracted. That the value of the said mining claims owned by Lamb is $400,000, or more, and that after the end of one year from the

date of making said agreement Lamb extracted gold from said mines and claims to the amount of $350,000 or more, and had sold certain mines and interests therein for large amounts of money; the names of such claims and the amounts received being unknown to plaintiffs. That Lamb has refused to convey to plaintiffs any part of said claims, and has refused to account to plaintiffs; and that plaintiffs and Smith have fully complied with and performed their part of the terms of said contract. The prayer of the complaint is that Lamb be required to account for all moneys received by him for precious metals extracted as aforesaid from said mines and claims, and for the moneys received upon sales of mines and claims, and that he be required to pay over one-half so received, after deducting the amount received the first year, and the necessary expense for mining said minerals and locating and acquiring said claims; that said Lamb be required to convey to plaintiffs and to said Smith an undivided one-half interest in and to all mines and mining claims, or any interest therein, which he may now own in said Northwest Territory, Canada; that said Lamb, pending suit, be restrained from disposing of any of said property, and for general relief.

From the allegations of the complaint we may properly call this an action for an accounting and to compel the specific performance of a contract. Actions of this character are, and always have been, the subjects of equitable jurisdiction only. The complaint does not warrant relief in the way of damages for a breach of the contract, because no damages are either stated or claimed. Bohall v. Diller, 41 Cal. 532; Mining Co. v. Greenwood, 39 Cal. 71. No relief usually granted in an action at law can be given on the complaint herein, for, without the equitable remedy of an accounting in the case, it would be impossible to determine that, after deducting the amount received the first year and the expense of mining and locating mines, there would be any portion of the $350,000 alleged to have been extracted left to divide with the plaintiffs. Hence, the action being purely equitable in its nature, to determine the sufficiency of the complaint we must measure it by those rules which prevail in courts of equity. The appellants' chief contention is that the facts alleged disclose a special partnership agreement, and that such agreement of partnership was executed, and the partnership was actually launched, when defendant started for the Northwest Territory. If this contention were true, it might not be sufficient to entitle the plaintiffs to the relief here sought; but is it in fact true? A partnership is defined to be "the association of two or more persons for the purpose of carrying on business together, and dividing the profits." Civ. Code, § 2395. In the complaint nothing is said about the division of profits, or about any partnership, and the only allegation that can be said to refer to "carrying on business

together" has relation solely to the future, and is purely executory in its nature, and does not tend to show that the "partnership was launched when defendant started for the Northwest Territory." Indeed, the complaint is singularly devoid of all those terms usually found in the definition of a partnership. Smith v. Schultz, 89 Cal. 534, 26 Pac. 1087. Nor does the language of the complaint show that a division of the profits was contemplated by the parties. Profit is defined as "acquisition beyond expenditure," or "excess of value received over cost." By the contract alleged plaintiffs were for their $50 to be the owners of one-half of all the mines and mining claims acquired by defendant, with nothing said about deducting costs or expenditures in acquiring said mines. Of the minerals extracted after the first year, plaintiffs are to have, according to the contract, one-half, after deducting the necessary expense of mining the same. The expense to defendant of procuring these mines, added to the expense of extracting the minerals, may have been greater than the combined values of the mines and extracted minerals. If so, the plaintiffs alone would profit by the contract, and the defendant, instead of sharing in any profit, would be in arrears on the speculation. We think the contract, taken as a whole, is not one for division of profits, but rather for a moiety of property to be acquired by defendant, and therefore cannot properly be called a partnership contract under the Code definition cited above. Another reason that might be given to show that there was no partnership is found in the fact that it is not alleged that plaintiffs own any interest in any partnership property or business, or that they have ever been associated with defendant Lamb in carrying on any business. Coward v. Clanton, 122 Cal. 451, 55 Pac. 147. The mines are referred to as being owned by Lamb.

That portion of the contract relating to plaintiffs joining the defendant in working the mines and contributing to the labor and expense thereof evidently contemplated the forming of a partnership in the future, and, had the parties carried it out, it might have resulted in what is known as a mining partnership. "A mining partnership exists when two or more persons, who own or acquire a mining claim for the purpose of working it and extracting the mineral therefrom, actually engage in working the same." Section 2511, Civ. Code. But, even to constitute a mining partnership, it would seem that the parties must be associated together in the ownership or possession of the property in some way. It appears that the defendant refused to carry out or execute this agreement for working the mines together, and therefore no mining partnership was actually perfected. Of an executory contract for a partnership similar to this it has been said: "In such cases it is well settled that when the partnership was never launched, and when one of the co-part

ners has proceeded to conduct the enterprise in his own name, at his own cost, and for his own exclusive benefit, excluding the other party therefrom, and repudiating the partnership agreement, the only remedy of the party is an action at law for a breach of the contract. There would be, in such a case, no existing partnership, but only an agreement to form one, which was never consummated by launching the enterprise." Powell v. Maguire, 43 Cal. 11. In the case last cited the court below had ordered an accounting between the parties, and adjudged that the plaintiff be let into equal participation and enjoyment with defendant in the franchise and business of a ferry between Vallejo and Mare Island, and the supreme court reversed the judgment, and ordered the court below to dismiss the action; one of the grounds being that the contract relied on was merely executory. That the relief here sought cannot be obtained on any theory of a partnership agreement, see, also, Pom. Spec. Perf. Cont. § 290; Hyer v. Traction Co., 168 U. S. 484, 18 Sup. Ct. 114, 366, 42 L. Ed. 547, and cases there cited.

A special partnership is not disclosed by the complaint, as none of the steps requisite under the Code to the formation of such a partnership are shown to have been taken. Civ. Code, §§ 2477-2485. In the case of Harris v. Hillegass, 54 Cal. 465, which appellants rely on to support their complaint, it was stated in the complaint that the parties were co-partners, with equal interests, doing business in Philadelphia, and that the firm sent Hillegass, one of its members, to California, and furnished him with $1,500 to defray his traveling expenses, "and to enable him to engage in digging gold, and trading generally in said state on behalf of said firm," and that property which was procured by defendant, a share of which was sought by plaintiffs, was "acquired by and with the money aforesaid." In the case at bar there are no such allegations as the above to be found in the complaint, nor is there anything therein equivalent to or approximating such allegations.

Neither can the complaint be upheld on the theory that it counts on a grub-stake contract. It is essential to a right in property under a grub-stake contract that such property should be acquired by means of the grubstake furnished and pursuant to the grubstake contract. The complaint does not show that the $50 was used in procuring any portion of the property in controversy. Emery v. Mason, 75 Cal. 222, 16 Pac. 894; Miller v. Butterfield, 79 Cal. 62, 21 Pac. 543; Berry v. Woodburn, 107 Cal. 512, 40 Pac. 802; Cisna v. Mallory (C. C.) 84 Fed. 851.

The only other question discussed in the briefs is, does the complaint state a proper case for the enforcement of specific performance of the contract? "Specific performance cannot be enforced against a party to a contract in any of the following cases: (1) If he has not received an adequate considera

tion for the contract. (2) If it is not as to him just and reasonable." Civ. Code, § 3391. He who seeks the specific enforcement of a contract must show in his complaint that such contract is not obnoxious to the foregoing inhibition of the Civil Code. In Agard v. Valencia, 39 Cal. 292, it is said: "The court will not lend its aid to enforce a contract which is in any respect unfair, or savors of oppression, but in such cases will leave the party to his remedy at law. It is incumbent

on the plaintiff, therefore, to state such facts as will enable the court to decide whether the contract is of such a character that it would not be inequitable to enforce it." See, also, Bruck v. Tucker, 42 Cal. 346, and Arguello v. Bours, 67 Cal. 447, 8 Pac. 49. In this last case Mr. Justice McKinstry says: "In view of the intimation in Bruck v. Tucker, it will always be safer to aver (as was done in this case) that the price paid was a just and fair price, and the full value of the premises." In Nicholson v. Tarpey, 70 Cal. 608, 12 Pac. 778, it is said: "In actions for the specific performance of contracts for the sale of lands it is necessary to allege and show to the court an adequate consideration for the performance of the contract sought to be enforced, and that the same is fair and reasonable in all its parts, and of such a character as may fairly call for the interposition of a court of equity." Morrill v. Everson, 77 Cal. 114, 19 Pac. 190. In Windsor v. Miner, 124 Cal. 492, 57 Pac. 386, it is said: "Specific performance is an equitable remedy, and it is incumbent upon the plaintiff in an action of this character to show, both in the averments of his pleading and in the evidence at the trial, that he is entitled to the equitable relief which he seeks." These principles are not restricted to contracts for the conveyance of land, but they apply in all cases where the equitable jurisdiction of the court is invoked to enforce the specific performance of any obligation. Railroad Co. v. Cromwell, 91 U. S. 643, 23 L. Ed. 667. Measured by the foregoing rules, we think the court below properly exercised the discretion which it has in cases of this character in sustaining the demurrer to the complaint. For all that appeared from the complaint, the property involved in the case may have cost the defendant Lamb more than the alleged value of it. In that event it would be grossly inequitable to compel him to turn over the half of it for no greater consideration than $50. From the facts which did appear on the face of the complaint, we think the court was also warranted in saying that the complaint showed affirmatively that the contract was not just and fair, and that the consideration was inadequate, and that the demurrer was for that reason also properly sustained. To be sure, the expense of going to Alaska or the Northwest Territory does not appear from the complaint, but the court, we think, could take judicial cognizance that $50 was not an adequate consideration in equity to entitle plaintiffs and defendant Clark to

one-half the fruits of so tollsome and expensive a journey, to say nothing about the expense of procuring the property in question after his arrival in the mining country. We could not say that the court erred in drawing this conclusion from the allegations of the complaint, even though the question of adequacy and reasonableness should, as contended by appellant, be confined in point of time to the date of the contract.

From the facts which were stated it was reasonably certain that no facts were in existence upon which the relief demanded could properly be granted, and therefore it would have been worse than useless to permit an amendment of the complaint. Furthermore, as a matter of practice, the plaintiffs cannot have a reversal of the judgment on the ground that they were not granted leave to amend, for the reason that the record fails to show any request to amend, and there is no exception to the action of the trial court in that connection for this court to act upon. Buckley v. Howe, 86 Cal. 605, 25 Pac. 132; Durrell v. Dooner, 119 Cal. 411, 51 Pac. 628. There are other reasons that might be given why we deem the complaint insufficient, but it seems unnecessary to state them. We advise that the judgment be affirmed.

We concur: BRITT, C.; COOPER, C.

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

(7 Ariz. 2)

UNITED STATES ▼. LEE CHING GOON. (Supreme Court of Arizona. March 28, 1900.) CHINESE EXCLUSION ACT-DISCHARGE UNITED STATES' RIGHT OF APPEAL.

Under the Chinese exclusion act (Act Cong. Sept. 13, 1888, § 13), authorizing commissioners of United States courts to order the deportation of Chinese not of the privileged class, and giving the defendant a right of appeal, within 10 days, from a conviction by a commissioner of a United States court, to the United States district court; and under Act Cong. May 28, 1896, abolishing the commissioners of the United States circuit courts, and authorizing the appointment of commissioners by the United States district courts, and defining their pow ers, the United States has no right of appeal from the order of a United States commissioner discharging a Chinaman as a member of the privileged class, since the statute provides an appeal only for the defendant from a conviction.

Appeal from district court, Second district; before Justice Fletcher M. Doan.

Lee Ching Goon was tried before a United States commissioner for the Second Judicial district for being in the United States in violation of the Chinese exclusion act, and was discharged as a Chinaman of the privileged class. From an order of the district court dismissing the appeal of the United States from the commissioner's order, the United States appeals. Affirmed.