Dalton

The plaintiff commenced an action against the defendant to obtain a decree dissolving a co-partnership and for an accounting. The defendant appeared and answered and filed a counterclaim. The trial court made findings in favor of the defendant and judgment was entered thereon. From that judgment the plaintiff has appealed.

In his complaint the plaintiff alleged the formation of the partnership; that the plaintiff and defendant commenced to transact business; and that the defendant had' been guilty of numerous wrongful acts, among others that he had misappropriated the partnership funds. In his answer the defendant denied each of the alleged wrongful acts and then, as an affirmative defense, he pleaded that the plaintiff was guilty of fraud in inducing the defendant to become a copartner.

On the trial of the ease the plaintiff called the defendant as a witness and proceeded to examine him under the provisions of section 2055 of the Code of Civil Procedure. He also called Mr. Wilson, the fiduciary agent of the partnership. On the hearing the trial court proceeded to take an accounting without referring the taking of an account to a referee and without making an interlocutory…