Keyes

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 3 The action was brought to secure the dissolution of an alleged partnership between the parties and for an accounting. A trial was had before the court sitting without a jury and judgment was entered dissolving the partnership and awarding plaintiff damages, with interest and costs, amounting in the aggregate to $6,960. The appeal is by defendant from said judgment. Appellant contends that the evidence is insufficient to support several of the findings of the court, the first finding attacked being numbered 1, which stated that the parties hereto "formed a partnership." The finding that the relation existing between the parties was that of a partnership was based upon a written instrument (hereinafter to be called the "Keyes-Nims contract") which is in the following language: "Stockton, California, September 26th, 1916. "It is hereby agreed between F. B. Nims of Stockton, California, and A. V. Keyes of Stockton, California, that all dealings and contracts entered into with the Samson Sieve-Grip Tractor Company of Stockton, California, after…

In his petition for a rehearing the appellant calls our attention to the fact that, in our original opinion, we overlooked the proposition urged by him in the briefs that the court below erred in allowing the plaintiff interest on the latter's share of the amount for which the defendant sold the royalty contract with the Samson Company. [7] The failure to consider the question of interest was purely an oversight, and, as it is an important question herein, it should have been considered, but we do not see the necessity of granting a rehearing for that purpose, and we will, therefore, consider and dispose of the point on this application without ordering a rehearing. Counsel for appellant take the position that the demand declared upon by the plaintiff was uncertain or unliquidated, and that, therefore, it was error to include in the judgment against appellant interest on the amount awarded the plaintiff from the date of the sale and the payment of the money to appellant, which was April 3, 1917. In support of this position there are cited many California cases, of which the leading ones are: Cox v. McLaughlin, 76 Cal. 60 , [ 9 Am. St. Rep. 164 , 18 P. 100 ]; Easterbrook v.…