Vergano

This is an action to recover from the appellant an alleged balance due to the respondent for labor. The record discloses that the appellant was the owner of a restaurant, which he contracted to sell to the respondent for fifteen hundred dollars, of which sum five hundred dollars was then and there paid in cash. It was further stipulated that either party might withdraw from the contract within two months—the appellant by returning the five hundred dollars initial payment and the respondent by simply withdrawing and forfeiting his payment. The parties did not enter into partnership, but they agreed to do so, if the sale was finally consummated, and in that event they were to have been partners from the beginning, so far, at least, as concerns the profits and losses.

The respondent entered the restaurant and for the period of two months and a little over he devoted his time and services to the business. It was agreed that each party should draw down during the two months two hundred dollars a month as “expenses.” The appellant does not dispute that each was to draw down two hundred dollars per month, hut he testifies that the two hundred received by the respondent was to be by way…