Appeal from the District Court, Third Judicial District, Santa Clara County.

The plaintiff filed a complaint setting up the facts found by the Court, and also some other facts not material to be reported. He prayed in his complaint for an account to be taken by the Court of the value of all the ores removed from the mine by the defendants and of all sums of money which they had received and which' had in any manner come to their use from the mine, and also of all charges and expenditures on account thereof by any and all of the partners, as well the plaintiff as the defendants, and each of them, and that the Court adjudge, order and decree that the partnership be dissolved, and that the defendants be required to pay to the plaintiff the amount which should be found to be due the plaintiff on the account, and the defendants be directed and required to grant and convey to the plaintiff one equal undivided third of the mine of North Almadén, and of all the interest owned or held by the defendants in the said mine of North Almadén, whether derived through or under the contracts with Thomas H. Farnsworth and Oliver W. Farnsworth, or otherwise, together with the rights thereunto belonging or in anywise appertaining, free from any and all incumbrances or charges, liens, or alienations of any kind made, done or suffered by the defendants or either of them, and for such other and further relief as to the Court might seem in accordance with equity and good conscience, and for all costs of suit.

The District Judge rendered judgment for defendants, and gave the following opinion, assigning his reasons therefor :

“ My conclusion is that the foregoing facts do not show a partnership between the plaintiff and the defendants; that the verbal agreement made by the defendants to the plaintiff to share with him their interest in the mine if it should prove to be valuable, and their subsequent fraudulent conduct in refusing to do so after he had developed it, are matters for which the plaintiff has his remedy at law or in equity, upon a proper case to compel a specific execution of their agreement out of any interest which they, the said defendants, may have in the mine or the land in which it is. Therefore the defendants are entitled to judgment in this case for costs.

“ Judgment is so ordered.”

The plaintiff appealed.

The other facts are stated in the opinion of the Court.