Phillips

Action for money had and received by defendant for plaintiff’s use. Judgment for plaintiff. Defendant appeals upon a bill of exceptions.

The action was originally commenced in a justice’s court. An answer was filed, which was considered by the court and all parties to the proceedings as sufficient to authorize the certification of the case to the superior court, under section 838 of the Code of Civil Procedure, and the superior court proceeded to the trial of the action upon the same theory. It is apparently assumed by both parties that the case is within the jurisdiction of this court, and for the purposes of the decision we will so assume. The sole -contention of appellant is that a partnership existed between plaintiff and defendant, and the rule that one partner may not sue his copartner at law, where no accounting or settlement of the partnership affairs has been had, is invoked. In our opinion, no partnership relation is shown. The mere fact that a rancher agrees with another that he may milk the cows upon a ranch belonging to the former and for his labor in their care and milking shall have one-half of the proceeds of the cream sold, and one-half of any calves born while…