[S. F. No. 1979. Department Two.-March 17, 1900.]

N. R. PRINCE et al.. Appellants, v. CHARLES LAMB et al., Respondents.

A

CONTRACT FOR INTEREST IN MINES-EQUITABLE ACTION-ACCOUNTINGSPECIFIC PERFORMANCE-TEST OF SUFFICIENCY OF COMPLAINT. complaint claiming an interest in mines located by the defendant in his own name in the Northwest Territory, Canada, under an alleged contract for a share therein, and seeking an accounting of the proceeds of mining, and of sales of claims made by the defendant, and that the defendant be required to convey a half interest on all claims now owned by him in said territory, is in its nature an equitable action for an accounting and to compel the specific performance of a contract; and the sufficiency of the complaint must be tested and measured by the rules which prevail in courts of equity.

ID.-ABSENCE OF CLAIM FOR DAMAGES-NECESSITY FOR ACCOUNTING.—If the complaint does not state or claim any damages, it does not warrant any legal relief in the way of damages for breach of the contract; and where no recovery of money can be had in the action without the equitable remedy of an accounting, the action is purely equitable in its nature. ID.-PARTNERSHIP NOT SHOWN-EXECUTORY CONTRACT.-A complaint stating an executory contract for a moiety of property in mines to be located by the defendant, but which does not state an agreement for a partnership, or for the division of profits of working the mines, and does not show that plaintiffs own any interest in any partnership property or business, or that they have been associated with the defendant in mining, or carrying on any business, and which refers to the mines as being owned by the defendant, does not state a partnership contract, nor show the existence of any partnership, general, mining, or special.

ID.-GRUB-STAKE CONTRACT-CONTRIBUTION TO TRAVELING EXPENSES.— It is essential to a right in mining property acquired under a grub-stake contract that such property should be acquired by means of the grub-stake furnished, and pursuant to the grubstake contract. A complaint merely alleging that fifty dollars was contributed by plaintiff's upon the departure of the defendant for the Northwest Territory to enable him to go there, under an agreement for a share in all mining locations to be made by him, but which does not show that any part of the money was to be used or was used in procuring any of the mining claims in controversy, does not show a grub-stake contract.

ID.-SPECIFIC PERFORMANCE-ADEQUATE CONSIDERATION-JUST AND REASONABLE CONTRACT-PLEADING.-A complaint for the specific per

formance of a contract must state such facts as will show that the contract is founded upon an adequate consideration, and that it is just and reasonable as to the defendant. ID.-INSUFFICIENT COMPLAINT CONTRIBUTION OF FIFTY DOLLARS FOR HALF INTEREST IN MINES-EXPENSIVE Journey.-A complaint showing merely a contribution of fifty dollars from the plaintiffs toward a toilsome and expensive journey of the defendant to the Northwest Territory, in consideration for an agreement for a half interest in all of the mines which should be located or acquired at the expense of the defendant either in Alaska or in the Northwest Territory, does not show an adequate consideration in equity for the contract, nor a just and reasonable contract which a court of equity will enforce, but affirmatively shows the contrary, considering the contract as of the time when it was made; and the complaint is insufficient to entitle the plaintiff to specific performance, or to any relief in equity. ID. SUSTAINING OF DEMURRER-REFUSAL OF AMENDMENT OF COMPLAINT— NATURE OF FACTS-ABSENCE OF REQUEST OR EXCEPTION.-Where the nature of the facts is such that it is reasonably certain that a complaint in equity cannot be amended so as to state a cause of action for equitable relief, and the record fails to show any request for an amendment of the complaint, or any exception to the ruling of the court, its refusal to allow an amendment of the complaint upon the sustaining of a demurrer thereto cannot be considered as erroneous.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. C. B. Hebbard, Judge.

The facts are stated in the opinion.

Brown & Newby, and Sawyer & Burnett, for Appellants. The complaint shows a partnership for no fixed period, which was terminated by the refusal of the defendant to carry it on. (Civ. Code, secs. 2395, 2449, 2159, subd. 2; Ross v. Cornell, 45 Cal. 133; Ligare v. Peacock, 109 Ill. 94.) The termination of the partnership could not affect rights previously vested. (Lawrence v. Robinson, 4 Colo. 567.) All the essential conditions of a partnership are shown. (Beauregard v. Case, 91 U. S. 134; Harris v. Hillegass, 54 Cal. 465; Skillman v. Lachman, 23 Cal. 204; 83 Am. Dec. 96.) A grub-stake contract is a qualified partnership. (Boucher v. Mulverhill, 1 Mont. 306; Berry v. Woodburn, 107 Cal. 504; Moritz v. Lavelle, 77 Cal. 10; 11 Am. St. Rep. 229; Meylette v. Brennan, 20 Colo. 242; Hirbour v. Reeding, 3 Mont. 15.) The partnership was launched when

Lamb started for the Klondike; and any mines acquired by him were partnership property, the title to which was held in trust for his copartners. (Parsons on Partnership, 4th ed., sec. 6, note "d"; Lawrence v. Robinson, supra; Kerrick v. Stevens, 55 Mich. 167; Beauregard v. Case, supra.) The parting with plaintiffs' money was a good consideration for the contract. (Civ. Code, secs. 1605, 1606; 1 Parsons on Contracts, *430, and note.) The plaintiffs are entitled to an accounting. (Garr v. Redman, 6 Cal. 574; Quackenbush v. Sawyer, 54 Cal. 441; Petrie v. Torrent, 88 Mich. 43, 58; Mitchell v. O'Neale, 4 Nev. 523; Clifton v. Howard, 58 Am. Rep. 106, and notes.) The court may enforce a distribution of property in kind, and order a conveyance of property though not situated in the state of California. (Harper v. Lamping, 33 Cal. 641; 2 Lindley on Partnership, 1017, and notes; Griggs v. Clark, 23 Cal. 429; Bremner v. Leavitt, 109 Cal. 133.) The contract must be considered as of the time when it was made, and not in the light of subsequent events. (Rutland Marble Co. v. Ripley, 10 Wall. 339; Sugden on Vendors, c. 5, sec. 3; Lee v. Kirby, 104 Mass. 420-28; Revell v. Hussy, 2 Ball & B. 280-87; Paine v. Meloer, 6 Ves. Jr. 349-52; Morlimore v. Copper, 2 Bro. Ch. 156.) The court should have allowed an amendment to make the complaint more certain. Plaintiff was entitled to recover at law, if not in equity. (White v. Lyons, 42 Cal. 279; McPherson v. Weston, 64 Cal. 279.)

Hall McAllister, and M. F. Michael, for Charles Lamb, Respondent.

The complaint states no cause of action for damages. (Bohall v. Diller, 41 Cal. 532, 535.) The contract is repugnant to equity and the court had discretion not to enforce specific performance. (Radcliffe v. Warrington, 12 Ves. 332; Fish v. Lightner, 44 Mo. 268, 272; Fish v. Leser, 69 Ill. 394, 395; Quinn v. Roath, 37 Conn. 16, 24; McComas v. Earley, 21 Gratt. 23, 29; Cooper v. Pena, 21 Cal. 403, 411; Bruck v. Tucker, 42 Cal. 346, 353; Seymour v. Delancey, 6 Johns. Ch. 222; Carlisle v. Carlisle, 78 Ala. 339.) The contract is too vague and uncertain in its terms to be enforced. (Civ. Code, sec. 3391, subd. 2; Morrison v. Rossignol, 5 Cal. 65, 66; Phillips v. Thompson, 1 Johns. Ch. 131; Sturgis v. Galindo, 59 Cal. 28, 31; 43 Am. Rep.

239; Smith v. Taylor, 82 Cal. 533, 541; Carlisle v. Carlisle, supra; Port Jervis elc. R. R. Co. v. New York etc. Ry. Co., 10 N. Y. Supp. 582; 56 Hun, 647; Texas etc. Ry. Co. v. Marshall, 136 U. S. 393.) The agreement should not be enforced, because it is unfair, unreasonable, and unjust-a hard bargain. (Bruck v. Tucker, supra; Agard v. Valencia, 39 Cal. 302; Pope Mfg. Co. v. Gormully, 144 U. S. 224; Bruce v. Tilson, 25 N. Y. 202; Perkins v. Wright, 3 Har. & M. 324.) Courts of equity will not aid in securing a contingent or speculative advantage. (Mississippi etc. R. R. Co. v. Cromwell, 91 U. S. 643; Randolph v. Quidneck Co., 135 U. S. 457; Clarke v. Rochester etc. R. R. Co., 18 Barb. 350, 355; Andrews v. Andrews, 28 Ala. 432; Smith v. Crandall, 20 Md. 482; Daniel v. Frazer, 40 Miss. 507; McWhorter v. McMahan, 1 Clarke Ch. 406; Crane v. Decamp, 21 N. J. Eq. 414.) Specific performance cannot be enforced, because the consideration for the agreement is grossly inadequate. (Civ. Code. sec. 3391, subd. 1; Ward v. Yorba, 123 Cal. 447, 452; Nicholson v. Tarpey, 70 Cal. 608, 609; Dunlap v. Kelsey, 5 Cal. 181; Bruch v. Tucker, supra; Seymour v. Delancey, supra; Sturgis v. Galindo, supra; Modissett v. Johnson, 2 Black f. 431; Johnson v. Dodge, 17 Ill. 438; Mississippi etc. R. R. Co. v. Cromwell, supra; Randolph v. Quidneck Co., supra.) The complaint shows no partnership-general, special, or mining partnership. (Parsons on Partnership, 4th ed., 42, 47; 1 Bates on Partnership, 35; Smith v. Schultz, 89 Cal. 526, 534; Harris v. Hillegass, 54 Cal. 463; Civ. Code, secs. 2511, 2512.) An executory contract to form a partnership cannot be specifically enforced in equity. (Powell v. Maguire, 43 Cal. 11; Hyer v. Richmond Traction Co., 168 U. S. 471, 484, and cases cited.) The complaint shows no grub-stake contract. (Meylette v. Brennan, 20 Colo. 242; Berry . Woodburn, 107 Cal. 512; Miller v. Butterfield, 79 Cal. 62; Boucher v. Mulverhill, 1 Mont. 306.) No question of the refusal of the court to allow an amendment to the complaint arises upon the record. (Buckley v. Howe, 86 Cal. 596; Durrell v. Dooner, 119 Cal. 411, 413.)

GRAY, C.-This is an appeal from a judgment following an order sustaining a demurrer to the complaint without leave to amend. The action is against the defendant Lamb. Smith

was made a defendant because he was out of the United States, and his consent to become a plaintiff could not be obtained.

The substance of the complaint, necessary to be stated, is as follows: That in the year 1896, in the city of Los Angeles, the plaintiffs and defendant Smith agreed to and did furnish said defendant Lamb with fifty dollars (ten dollars each) "as a grubstake to enable him to go to Alaska, or the Northwest Territory, Canada, to prospect for gold and other precious metals, and to locate and acquire mines and mining claims." That in consideration thereof Lamb agreed to go to said territory to prospect for gold and other precious metals, and that plaintiffs and said Smith should have an undivided one-half of any mines or claims located or acquired by said Lamb, together with a like one-half of all the minerals that Lamb should extract therefrom after the end of one year from the date of the contract, and after deducting therefrom the necessary expense of mining the same, and that defendant Lamb would account to and pay over to them the said one-half of said minerals. It was also alleged that it was agreed between the parties that if Lamb should be successful in locating or acquiring any mines or claims of value, or thought to be of value, he should notify the other parties at once by letter, and, as soon as possible thereafter, they should go to said territory and assist in working the same, furnishing one-half the labor and expense thereof, and said plaintiffs and said Smith were to be the owners of an undivided onehalf of any mines or mining claims so located or acquired by Lamb, and were to have one-half of all the minerals thereby extracted. It is further alleged that in pursuance of said agreement, and while the same was in full force and effect, Lamb went to said territory and located certain mines and mining claims, and notified the plaintiffs and Smith thereof by letter, instructing them to come and assist him in accordance with said agreement, and that as soon thereafter as possible plaintiff's Prince, Peterson, Holloway, and defendant Smith went to Dawson, Canada, and found that Lamb had disposed of some of the mines acquired by 'him, and refused to allow them to assist him in working the mines and mining claims he then owned, and refused to account for or pay over to them any part of the minerals extracted. That the value of the said mining claims