Koyer

Appeal from a judgment and an order-denying a new trial.

The action was one brought to obtain a judgment of the-superior court adjudging defendant to hold an undivided one-half interest in and to certain described property in trust, for plaintiff, and for a decree that upon the payment by plaintiff to defendant of one-half of the money advanced, it be adjudged and decreed that plaintiff is the owner of an,. undivided one-half interest in said property.

This case was once heard upon appeal in the supreme court, and is reported in 150 Cal. 785 , [ 90 Pac. 135 ]. The complaint in the record upon this appeal is the same as was the complaint in the case above cited. In that case upon appeal the supreme court held that the allegations of the complaint, if true, were sufficient to make plaintiff and defendant partners, and that a partnership for the buying and selling of lands may be proved by an agreement resting in parol. After the remittitur was sent down in the case above mentioned, defendant filed an amended answer controverting certain matters not theretofore put in issue by the original answer. Having in view these facts, there should be no controversy over the proposition that,…