Lanpher

This is an appeal from a judgment against the plaintiff and from an order denying a new trial in an action upon an alleged partnership agreement, and for an accounting and settlement of the partnership affairs. The principal question before this court is as to whether such partnership actually existed; and our conclusion upon that issue will dispose of the other questions presented by the record on appeal.

The plaintiff’s complaint set forth in substance that he is a builder and contractor by occupation, and that in the latter part of 1907 he and the defendant B. F. Warshauer, associated themselves together for the purpose of engaging in the building business, and dividing its profits and losses between them in equal shares, the plaintiff to give his personal attention, skill, and labor to the firm, and the said defendant, to furnish it with such capital as it should require; that the business of said firm was to begin by the erection of a house upon a portion of a lot owned by the defendant in Berkeley, which house, when erected, was, with such portion of said lot as was necessary, to be sold in the open market, and after the defendant had been reimbursed for the price of the…