Merritt

The alleged stipulation should have been by agreement 'filed with the Clerk. (Code of Civil Procedure, sec. 283, and Borkheim v. North British & M. Ins. Go. 38 Cal. 628 .)

Geo. A. Nourse, for the Eespondcnt.

Sec. 283 of the Code of Civil Procedure has no application to a stipulation made in open Court, in facie curiae. (Staple s v. Parker, 41 Barb. S. C. Rep. 650.)

J. P. Hoge, also for Eespondent.

The plaintiff, and the defendant, being tenants in common of certain premises in the City of Oakland, agreed with each other to erect a building thereon—each of them to pay one-half the cost thereof.

The building was accordingly erected, and thereupon the plaintiff commenced this action to recover of the defendant the sum of $77,770.26 in United States gold coin, for advances, *239 payments, and expenditures of money made by the plaintiff for account and benefit of defendant in the prosecution of the work, it being alleged in the complaint that the defendant had promised to repay the plaintiff in United States gold coin whatever sum the plaintiff might advance over and above his own share of the expenditure.

The answer of the defendant, after denials of the various amounts alleged…