Vath

The plaintiff brought this action to recover of the defendants Davitt and Hallett the sum of three thousand dollars, alleged to be due under the terms of a written contract. Two other persons were made defendants under an allegation that they refused to join with the plaintiff. Davitt and Hallett will be referred to as the defendants. The defendant Davitt demurred to the complaint, and his demurrer having been overruled, he declined to answer and judgment was entered against him. He appeals from such judgment. For a clear understanding of the case it seems necessary to set out in full the contract sued upon as it appears in the complaint. It is as follows: "This agreement made between James J. Davitt and J. F. Hallett, of the County of Santa Clara, State of California, parties of the first part, and A. L. Brassy, C. J. Vath and George Geoffrey, of the same said county and state, parties of the second part, "Witnesseth: "That whereas the said James J. Davitt and J. F. Hallett are about to enter into partnership in the business of retailing liquor, at number 19 South Second street, in the City of San Jose, County of Santa Clara, State of California, and the said J. F. Hallett is…

The petition for transfer and hearing in this court is denied. We think the judgment was properly reversed upon the first ground stated in the opinion of the district court of appeal, viz.: That the complaint does not state facts showing a substantial breach of the agreement. We are not satisfied of the correctness of the views expressed by the district court of appeal on other points, and withhold the expression of any opinion on such points. Upon a new trial the superior court will not regard as decided or as the law of the case any proposition except the one which is above stated to have our approval.