Appeal from the District Court of the United States Tor the District of Montana.

Action by Charles AT. Bush against B'rank S. Dusk. Judgment for plaintiff, and defendant appeals.

The substance of the appellee’s bill against the appellant is that early in the year 1907 D. D. Streeter and the appellant. Lusk, entered into a copartnership under the name of Streeter & Lusk, with a view to performing contraéis in railroad construction in Montana, one portion of which was the ■construction of a line between St. Regis and the St. Paul Pass tunnel, which work is referred to in tlie record as the “St. Regis work,” and another was the construction of tunnels in association with Winston Bros. Company, a corporation, which tunnels were to be located east of Missoula in Montana; that the agreement between Streeter & Lusk and the Winston Bros. Company provided for a,n equal distribution between said firm and said corporation of the profits accruing from the work; and the bill alleges that there has been a final adjustment and settlement between said firm and said corporation, that, the copartnership agreement between Streeter and Lusk was oral, that each partner was to advance and contribute equally to the capital necessary to be invested therein, and that out of the moneys received on the contracts .such advances were to he first repaid. The bill alleges that the appellee was a railroad contractor and the son-in-law of Streeter; that lie was to render to said firm such aid and assistance in the said work, and in purchasing and forwarding supplies for said work as he might be called upon from time to time to render; that each partner was to receiye 45 per cent., and the appellee was to receive 10 per cent, of the net profits of the St. Regis work, and that as to the other work each partner was to receive 47% per cent., and the appellee was to receive the remaining 5 per cent, of the net profits; that the said copartnership of Streeter & Lusk, at the time when the copartnership was formed, entered into an agreement with the appellee that he should perform such services and receive such compensation as above set forth; that afterwards,, in June, 1908] by mutual consent, the compensation of the appellee for his services was enhanced and enlarged by an allowance and credit to him of wages at $200 per month, for the time during which he should render his services while actually in the state of Montana; that in April, 1907. at the instance and request of said copartnership, the appellee took charge of certain railway work near Milwaukee, Wis., known as the “St. Francis cut-off,” under contract with the Chicago & Northwestern Railway Company ; that the appellee took charge of and looked after and managed and conducted said work at the request of both members of said firm until it was completed in May, 1908, and at the same time he rendered aid and assistance to the firm in respect to its Montana contracts, and that the work which the appellee so did in Wisconsin was, by agreement with said firm, taken and considered as part and parcel of, or in lieu of, the services and assistance which he might or would have rendered in said Montana work, but for the request of said firm, and the appellee was not to be allowed any additional compensation for,his said work in Wisconsin; that in the latter part of May, 1908, the appellee was by said firm instructed to go to Montana to perform services in the work of the firm there, and in obedience thereto he went to Montana about June 1, 1908, and performed such services, and in the month of June. 1908, by mutual consent of the copartnership and the appellee, it was agreed that the latter was to be credited and paid by said firm, in addition to said compensation by way of percentages of net profits, a salary at the rate of $200 per month for the time during which he should render his services in Montana, and that he was paid such salary; that he continued on said work in Montana from June 1, 1908, until July, 1909, with the exception of two short trips which he made to Michigan in December, 1908, and April, 1909; that on September 28j 1909, Streeter died intestate, leaving a widow and two daughters; that on November 1, 1909, by an order made and entered in the probate court of Kalamazoo county, in Michigan, where Streeter was domi-. ciled, letters of administration were issued upon his estate, and all the property thereof "and the claim of the decedent against Lusk were within the jurisdiction of said probate court; that on July 18, 1910, said court entered its order and decree adjudging that the widow and daughters of the intestate were his only heirs, and were entitled to his estate, and by said order the court assigned and distributed to them the claim which said decedent had at the time of his death against Lusk, and that the said widow and heirs have duly assigned and transferred to the appellee, for his own use and' benefit, the said claim, interest, and right of action against Lusk, and all moneys due or owing, and their right to an accounting, settlement, and payment of the moneys, credits, and hssets, of the alleged copartnership; that Streeter owed no debts in Montana, and there has been no application in that state for distribution of his estate. The bill alleges that the net profits of the copartnership were more than $410,000, of which the appellee is entitled to 10 per cent., and Streeter was entitled to 45 per cent.; that the net profits of the contract jointly performed by the firm and Winston Bros. Company were more than $58,000; that on April S, 1909, the copartnership paid to the appellee $25,000 on account of his share of such profits, and that $19,000 is still due and unpaid. The bill prays for an accounting and for a decree in accordance with the appellee’s demands.

The answer denies that any contract of any character was entered into between the appellee and the firm, except the contract by which the appellee was to render services upon a salary, and denies that the copartnership paid the appellee the sum of $25,000, and alleges the fact to be that on April 3, 1909, in the absence of the appellant, Streeter, the father-in-law of the appellee, delivered to the’ appellee the check of the firm of Streeter & Lusk for the sum of $25,000; that the payment was made, as the appellant was Informed and believed, on account of some partnership agreement existing between Streeter and the appellee; that immediately upon learning of this appropriation of $25,000 of the funds of the copartnership, the appellant caused entry to be made on the books of said copartnership, by which Street-er was charged with the receipt of $25,000 of the funds of the copartnership.

By tlie final decree the court found that the total profits which accrued to the copartnership of Streeter & Lusk from the contracts referred to in the bill were $374,050.84, of which Streeter and Lusk were each entitled to receive $108,596.92, and the appellee, Bush, was entitled to receive $37,405.98, his percentage of 10 per centum upon the not profits of a portion’ of the work, and five per centum upon the remainder thereof, and the court found the balance duo, after crediting certain payments to the respective parties, and directed the sale of certain personal property thereafter to be divided in the same ratio.