Roach

I concur in the judgment. In view of what the evidence tended to prove, a nonsuit was improper.

Domenico Caraffa and Giovanni B. Caraffa, brothers, entered into business as partners, in San Francisco, in the year 1859. Shortly afterwards they sold a one-third interest in their business to one Raggio, and admitted him into the partnership, the business being continued, as before, in the firm name of D. Caraffa & Co. In October, 1865, Domenico, being in failing health, returned to Italy, where he continued to remain until his death, which occurred in November, 1874. It is .claimed on the part of the plaintiff, who is administrator of the estate of Domenico, that when he, Domenico, went to Italy, the partnership was not dissolved; that he continued to retain his interest, his brother representing him, and as his trustee receiving from month to month his share of the profits of the business, and when so received holding it as his trustee; *442 out of his said share paying forty dollars per month for a man to work in the business in place of Domenico, remitting quarterly to Domenico, out of his said share, sums amounting to about one hundred dollars per quarter, and holding or investing the rest as he should deem best, for Domenico’s benefit; and that this continued down to the…