Appeal from the Twelfth District.

The complaint avers that on the first of December, 1854, defendants, Atkinson, Rarilett and C. Homer, entered into a copartnership for carrying on the business of architects, contractors and builders in San Francisco, setting out in full the articles of copartnership, among which was one that “ the said copartnership arrangement is to be strictly private and known only to the parties hereto,' and the public are to be in no manner apprised of the same.” The other articles were, substantially, that all building contracts entered into by either of the parties should belong to the partnership ; “ and whenever there is an opportunity for bidding for contracts, all of the said parties may offer their bids, but the contracts, if secured and taken by either party, shall belong to said copartnership, although the one partner may be the only person ostensibly known in the transaction;” that each partner be equally interested in all contracts and furnish one-third the money necessary: neither to enter into side operations or private speculations without the consent of his copartners, but to devote all his time to the copartnership (nothing is said about any firm name); that defendants entered into said agreement and inserted this particular stipulation about secrecy for the false and fraudulent purpose and intent of procuring goods, materials and contracts for the benefit of the firm, and to fraudulently conceal and evade the joint liability of its. members ; that said defendants conducted the business as agreed; that at the time plaintiff, with his partner, one Page, were doing business as lumber dealers in San Francisco, and during the year-1854 sold to said copartnership, acting under the name of “ 0. Homer,” goods and building materials worth $3,000 ; that said goods, etc., were bought for and used by said partnership, though the purchases were nominally made by said C. Homer, acting, ostensibly for himself alone, and that there is now due plaintiff from said defendants, for himself and as assignee of said Page, $4,891.66; that at the time of selling said goods, plaintiff and his partner were not aware of said copartnership, and that defendants knowingly con- - ceale'd the same, although all of them were cognizant of the purchases by Homer; that by accident, about August 2d,-1860, the existence of said copartnership was discovered by plaintiff, up to ’ which time neither plaintiff nor his partner, nor the public, knew of the same ; that said Homer left the State December 9th, 1854, and has never since returned. *

The complaint then adds a count upon two notes signed by C. Homer to order of Soule & Page, dated December 8th, 1854, one for $2,500, the other for $2,391.66; this count also containing the same averments as to copartnership and fraud.

Defendants demurred, on the grounds, among others, that the complaint did not state facts'sufficient to constitute a cause of action, and that “it appears by the complaint that at the time of the commencement of said action more than four years had elapsed since the said cause of action had accrued.” Demurrer sustained and final judgment for defendants, plaintiff not availing himself of the privilege granted to amend. Plaintiff appeals.