mer vs. Young, 1 Vern. 276." The precise point was decided later in Leach vs. Leach, 18 Pick. 76, in which case Wilde, J., delivering the opinion, said: "The renewed lease formed a part of the partnership property at the time of the dissolution of the partnership. It was so decided, and we think on sound principle, in the case of Featherstonhaugh vs. Fenwick, 17 Ves. 298." The whole subject is learnedly discussed in the notes of Messrs. White and Tudor to the case of Keech vs. Sandford (in which case it was held that a trustee for an infant could not obtain a renewal in his own name of a lease held in trust for the infant), and it is there shown that the current of decisions is in harmony with Featherstonhaugh vs. Fenwick. The principle upon which the cases rest is, that there is an implied obligation on each partner to act for the common benefit. This principle is embodied in Section 2441 of the Civil Code, which is as follows: "In all proceedings connected with the formation, conduct, dissolution, and liquidation of a partnership, every partner is bound to act in the highest good faith toward his partners. He may not obtain any advantage over them in the partnership affairs by the slightest misrepresentation, concealment, threat, or adverse pressure of any kind." It is perfectly true that the application of this principle is limited to matters which are within the scope of the partnership business. Thus, in Wheeler vs. Sage, 1 Wall. 578, the Supreme Court of the United States held that one partner in a "general produce business" could acquire the title to a valuable lot on which the firm had taken a mortgage to secure a debt, and Davis, J., delivering the opinion, said: "Each partner is the agent of his co-partners in all transactions relating to partnership business, and is forbidden to traffic therein for his own advantage, and if he does, will be held accountable for profits. But, beyond the line of the trade or business in which the firm is engaged, there is no restraint in his right to traffic. As one partner has no authority to bind the firm outside of their ordinary business, he cannot, of course, be held liable to account should he make a profitable adventure in a matter not legitimately connected with the business of the firm;" and following this case, our Supreme Court held in McKenzie vs. Dickinson, 43 Cal. 119, that one partner could purchase a judgment against his co-partner, and sell under execution on it the co-partner's interest in the firm assets; and Wallace, J., delivering the opinion, said: "The obligations of co-partners inter sese, whatever may be their nature and extent, refer only to the conduct of the business in which the firm is engaged." But the facts of this case bring it fairly within the operation of the rule above stated. The unshaken authority of Featherstonhaugh vs. Fenwick, shows that the obtaining of a renewal of the lease of the premises where the firm business is conducted, is a matter within the scope of the partnership business. It is contended, however, that the evidence shows that Kitzmiller once made an attempt to get the renewal in his own name, and that this left Plath at liberty to secretly acquire it for himself. I do not think so. I do not think an attempted fraud by one partner justifies a counter-fraud by the other, although it might in certain cases induce a Court of equity to withhold its relief; but assuming that it does, there is no evidence to show that Kitzmiller acted fraudulently in the matter. It is true he once applied to Mrs. Glinden for a renewal in his own name; but there is no evidence that he did so fraudulently. I accept as true the statement of Mrs. Glinden as to what occurred. She says that what Kitzmiller said was, that "he would like to get a longer lease in case he bought his partner out." There was no injunction of secrecy (as in Plath's case); and Mrs. Glinden did, in fact, tell Plath about it the next time she saw him. There is nothing which makes me think Kitzmiller atattempted to overreach his partner. He did not get the renewal, and the fact that he did not say anything about his attempt is not inconsistent with an innocent intention on his part. I hold, therefore, that Plath had no right to act as he did, and that the renewal which he clandestinely obtained and concealed for nearly two years was partnership property. Now, as above stated, Plath never transferred or offered to transfer this renewal to Kitzmiller. At first he expressly refused to do so, unless paid an additional sum for it, on the ground that it was his own private property, and on such refusal Kitzmiller declined to proceed with the trade. Even if Plath had the right after this to offer performance and hold Kitzmiller to his contract, it is apparent that he has not done so. He never subsequently offered any transfer of the lease. He subsequently offered to sub-let the premises to Kitzmiller, but that was not the same thing as a transfer, and Kitzmiller was not bound to accept it as such. I am convinced from the evidence that Plath could obtain from Mrs. Glinden permission to assign the lease, but he did not choose to do so. It results that there was no performance of the contract sued on, and the plaintiff cannot recover. The foregoing is sufficient to dispose of the case; but there is an issue as to whether the contract was rescinded; and it may be material to the parties to have it disposed of. The plaintiff contends that there was no rescission, because the parties were not restored to the condition they were in before the contract. It is an undoubted rule that the party seeking to rescind must restore the other to the condition he was in before the contract, and cannot retain anything, which but for the contract, he would not have been entitled to. (Civil Code, Section 1691; Bohall vs. Diller, 41 Cal. 532; Herman vs. Hofennegger, P. C. L. J., vol. 4, p. 561.) But there is no room for the application of this rule to the facts of the case. The fact upon which the argument is based is, that on the morning of the acceptance of the offer there was about $359 cash on hand, and by agreement each 'party took one-half. The argument is that Kitzmiller ought to have returned the half he got. But Plath never had any right to that. He only had a half interest in the firm, and it would not have been without foundation had a claim been put forward by Kitzmiller to all the money, on the ground that under the contract he was entitled to all the partnership property on payment of a certain sum. No such claim was put forward, however; and Plath was allowed to take half the cash on hand, Kitzmiller taking the rest. How there was any obligation on Kitzmiller to pay the whole of the cash over to Plath on rescinding, passes my comprehension. But if Kitzmiller had taken more of the partnership assets than he would have been entitled to under the articles of partnership, I still think he could rescind without returning it; for on rescinding he was entitled to possession by virtue of his being a partner in the concern. Before the contract Kitzmiller was entitled to possession with Plath of all the partnership assets; and on rescinding it was not necessary for him to give Plath the exclusive possession of any portion of them. The parties were simply restored to their former rights and relations. I hold, therefore, that Kitzmiller was entitled to rescind, and did rescind the contract sued on. The defendant has put in a cross-complaint, praying for a dissolution of the partnership and an accounting, and a decree applying the assets to the payment of the debts. The partnership has already been dissolved by the death of Plath. The surviving partner has authority to go on and settle up the affairs. No evidence sufficient to close the affairs has been given, and a reference would have to be ordered to take such evidence. I decline to order such reference, the case having been finally submitted, but will dismiss the cross-complaint, leaving the parties to take such further course as they may be advised. Cross-complaint dismissed, and judgment for the defendant, with costs in his favor. INDEX. ABATEMENT-Matter in abatement must be pleaded specially, so as to exclude every ACCEPTANCE-Of papers waives irregularities.-Livermore vs. Webb... ACKNOWLEDGMENT-Of a certificate of partnership by a Justice of the Peace is ACT OF GOD-Where damage was caused by the accumulation of sand in a ditch, An action transferred from the Justices' to the District Court must be tried on Under the Swamp Land Act, two causes to enforce liens may be united.-Swamp PAGE 88 725 914 947 484 890 138 473 741 An action by a school district is properly brought in the name of the district.- 898 An action for damages for injury to land may be brought against the agents of 905 ACTION PREMATURE-An action on a renewed note is premature if brought before An action cannot be brought against a tenant at will, for an unlawful detainer, ADVERSE POSSESSION-See STATUTE OF LIMITATIONS. AFFIDAVIT-A want of venue is not a fatal defect.-Reavis vs. Cowell..... An attorney, who is also a notary, may take an affidavit of his client.-Id. 1031 67 442 846 ..........162, 327 905 436 Agents of swamp land districts are personally liable for injuries to land by acts .... On an agreement by a creditor to give up a claim in consideration of a note of An agreement in a building contract that in case of dispute the extra work 1031 284 704 730 AIDER AND ABETTOR—The presumption is that the aider, abettor and insti gater ....... An order refusing to revoke letters of administration is not appealable.-Keane No appeal lies from an order directing a sale of certain realty of decedent's An appeal lies from an order granting a new trial.-Hodgdon vs. Griffin....... That an objection to the evidence was not passed on will not be considered if On appeal from order overruling intervenor's motion for a new trial, but no The Supreme Court cannot determine the truth or falsity of the allegation in 681 941 425 591 1025 484 956 1012 85 An appeal will be heard on its merits when there is enough in the transcript, 144 461 Judgment will be affirmed where it appeared that the appeal was taken for 384 Or where the ruling of the Court was in accordance with law, and no error in 664 Where the objection was not taken in the Court below, it will not be consid 1031 Where the record discloses no error the judgment and order will be affirmed.- 500 Where the record of judgment was amended so as to conform to the fact by 895 37 Where an order is inoperative and the parties are not aggrieved, appeal will be 541 The institution of an inquiry in the Court below by the defendant is sufficient 956 The Court will not reverse an order denying a motion for new trial where the 30 Smith vs. Silsby..... 111 The motion for new trial is addressed to the sound legal discretion of the 280 Pierce vs. Schader.. 169 Where judginent by default was set aside and there appeared to be a fuer- 593 An order granting a new trial for errors of law will be reversed where errors 428 786 |