In the complaint in this action it is alleged "that it was agreed and understood by and between him, this plaintiff, and this defendant, that if he, the said Thomas Noonan, would buy the said interest (of Armstrong's estate), he and the said Matthew Nunan would thenceforward be partners in the said business, and would conduct the same as such, in the same manner as the said Armstrong and the said defendant had done," etc.

The court below found this averment not to be true, and there was a substantial conflict, at least, in the evidence bearing on the issue made by it, and the denial thereof.

If it be assumed that there was a sale and conveyance of the interest of deceased in the leasehold which placed the legal title in an undivided undivided one half thereof in Matthew Nunan in trust for Thomas Noonan, the latter would perhaps be entitled (upon proper averments) to a decree directing a conveyance of said undivided one half of the legal title to him, unless it appeared from the facts alleged, and proved by the defendant, that there were debts due from the former partnership, or from Armstrong to the former partnership, which rendered it necessary and proper that the leasehold should be sold, and its proceeds applied to the liquidation of such debts. But the leasehold and appurtenances were assets of the late partnership between defendant and Armstrong which was dissolved by the death of the latter.

It was the duty and right of the surviving partner to settle the affairs of such partnership, and the purchase by the plaintiff was of course subject to the application of the assets to the satisfaction of the creditors of the former partnership and of the balance of advances, if any, made by defendant to the partnership during its existence. In equity it was a purchase of the residuum, if any there should be. Subject to a settlement of the partnership affairs, plaintiff became in equity tenant in common with the defendant in the property of the late

firm.

But the mere purchase of the interest of the estate in such property did not create a new partnership between the parties hereto.

It is insisted, however, that, conceding there was no conventional partnership, the subsequent use by defendant in his business of the property of which he and the plaintiff were owners as tenants in common charged the defendant with a trust, and with the duty of accounting to the plaintiff for profits derived from such use.

It was held in Heinlen v. Martin, 53 Cal. 321, that where the defendant had the mere legal title to the land and the plaintiff was entitled to the use thereof, and the defendant had excluded the plaintiff therefrom, and the suit was brought for a conveyance of the legal title, equity and justice demanded that (in analogy to the relief granted at law) the plaintiff should recover the "rental value" of the land from the time he demanded a deed, which in that case was the commencement of the suit. In the case at bar no demand was made for a conveyance of the plaintiff's alleged portion of the leasehold. On the contrary, the averments are, that the leasehold constitutes part of the partnership assets. In Quackenbush v. Sawyer, 54 Cal. 439, there was a specific agreement between the parties-substantially alleged and proved-that the defendant should account for moneys received from a third person for the benefit of himself and the plaintiff. And the court there held that the mere joint ownership of property does not constitute a partnership. Stokes v. Stevens, 40 Cal. 391, was an action of replevin. The cases cited by appellant from 16 and 17 Vesey, Jr., only redecide the established rules that partnership for an indefinite period may be dissolved by either partner at any time, and that, when there is a partnership, without any stipulation as to proportions, the partners are entitled to equal moities. (Peacock v. Peacock, 16 Ves. 49; Featherstonhaugh v. Fenwick, 17 Ves. 298.)

No facts are alleged in the complaint herein from

which would arise an implied or constructive trust with respect to the real property employed in the defendant's busiIt is averred, on the contrary, that it was so used by him in accordance with an agreement that it should constitute assets of a partnership.

ness.

If it be conceded that a trust may arise sometimes from the fact that property owned by a plaintiff and defendant, as tenants in common, has been profitably used by the defendant, and that, in such case, the latter may be held to an account, the complaint is not drawn upon that theory, nor are facts alleged which justify a decree appropriate to such a supposed case.

It is a cardinal rule in equity pleading that the alleyata and probata must agree. (Greene v. Covillaud, 10 Cal. 332; Murdock v. Clarke, 59 Cal. 693.) A party cannot be allowed to claim relief inconsistent with his pleading. (Weil v. Porter, 77 Mo. 287; Gregory v. Nelson, 41 Cal. 278; Cummings v. Cummings, 75 Cal. 434; Carpentier v. Brenham, 50 Cal. 549; Burnett v. Stearns, 33 Cal. 468.) The averment of the complaint is, that the leasehold and the appurtenances constitute the capital of the partnership formed by the plaintiff and defendant, and any accounting based on a finding of the fact of such partnership ownership must be upon different principles from an accounting based on the mere use of plaintiff's property by defendant. The purpose of the present action is to obtain a decree declaring a copartnership, decreeing its dissolution, and an account as incident to and consequent upon such dissolution. The court found there was no partnership. Its existence or non-existence was the main issued joined. There was no question presented by the pleadings in regard to a co-tenancy of those not partners, or in respect to the liability of co-tenants as such.

As the appellant neither asked for the judgment which it is now claimed should have been entered in the court below, nor alleged facts upon which such a judgment

LXXVI. CAL.-4

could properly have been entered, he cannot here demand a reversal of the judgment which responded to the issues actually made and submitted to the trial court.

Judgment and order affirmed.

SEARLS, C. J., and Paterson, J., concurred.

Hearing in Bank denied.

[No. 9890. In Bank.-April 30, 1888.]

PAUL MENK, Respondent, v. HOME INSURANCE COMPANY, APPELLANT.

FIRE INSURANCE-APPLICATION-OCCUPATION OF INSURED PREMISES.An application for a policy of fire insurance stated, with reference to the occupation of the premises, that the first story was occupied by "applicant as a brewery," and the second story "as a lodging-house and family residence." The application further stated that the second story was occupied by a tenant. Held, there was no representation that the applicant personally resided on the premises. ID.-MISSTATEMENTS BY AGENT OF INSURER.-Misstatements contained in an application for a policy of fire insurance, which was made out by the agent of the insurer, cannot be taken advantage of for the purpose of defeating the policy, if the agent knew the statements to be false when he made out the application.

ID. EVIDENCE AS TO PROPERTY DESTROYED AT FIRE.-In an action on a policy of fire insurance, where the defense is made that the plaintiff himself set fire to the premises, evidence is admissible on behalf of the plaintiff that property belonging to him, other than that covered by the policy, was destroyed by the fire. ID.-AFFIDAVIT IN PROOF OF LOSS-IMMATERIAL ERROR.-In such an action, the admission in evidence of an affidavit made by the plaintiff soon after the fire, in proof of the loss, is an immaterial error, when the plaintiff testifies to the same facts as those stated in the affidavit, and the court expressly limits the effect of the paper as evidence to showing that the affidavit had been made. FINDING INSUFFICIENCY OF EVIDENCE-NEW TRIAL.-The sufficiency of the evidence to sustain a funding will not be considered on appeal, unless the statement on motion for a new trial contains a specification of the particulars wherein the evidence is claimed to be insufficient.

APPEAL from a judgment of the Superior Court of Nevada County, and from an order refusing a new trial.

The facts are stated in the opinion of Department One.

Olney & Byrne, A. B. Dibble, Van Ness & Roche, and Byrne & Cross, for Appellant.

Gaylord & Searis, for Respondent.

The COURT.-This cause was heard and determined in Department. A rehearing was granted, and it comes be

fore us again.

Upon further examination, we adhere to the former opinion filed, and the judgment and order appealed from are affirmed, for the reasons given in the opinion of Department One, filed August 30, 1887.

The following is the opinion above referred to:

TEMPLE, J.-Suit was brought upon a policy of insurance issued by the defendant; and from the judgment rendered in the action against the defendant, and from an order denying defendant's motion for a new trial, this appeal is taken.

The application and survey were expressly referred to and made part of the policy, and it was further stipulated that such application and survey should be considered a part of the contract and a warranty by the assured, and that any false representation by the assured of the condition, situation, or occupancy of the property, or any omission to make known any fact material to the risk, or any overvaluation, should render the policy void.

Among other defenses, it was claimed that there was an over-valuation of the property and a misrepresentation as to its value; that a portion of the premises was occupied by a tenant as a saloon for the sale of liquors, which fact was not mentioned in the application, which stated as to the occupancy of the premises: "First story by applicant as a brewery; the second story as a lodging-house, and family residence in the rear."