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were to furnish provisions and tools, and share their interests equally with him. Brodie had nothing to do with this subcontract. It concerned plaintiff and defendants alone; consequently, Brodie had no interest in the litigation, so far as the establishment of plaintiff's right is concerned. What became of Brodie's interest after the development of the mine does not appear, yet he does not seem to have figured in the matters relating to the leases and conditional purchases from the Farnsworths, or in anything subsequent to striking the ledge. If Brodie still has an interest, and an account is to be taken, the association dissolved and the interests severed, as prayed for, Brodie and Crandall are necessary parties, for this branch of the relief sought could not be granted without affecting their interest. They are necessary parties in taking an account. It would be impossible to ascertain what share of profits would fall to the two thirds interest originally held by the defendants without taking an account as to the whole. It is true that no objection was taken in the court below, on the ground of defect of parties, and the suit need not therefore necessarily be defeated; but it is one of those cases provided for in section seventeen of the Practice Act, where it turns out upon the trial that a complete determination of the controversy can not be had without the presence of other parties, and the court is authorized, of its own motion, to order them to be brought in before a final disposition of the case. If the plaintiff insists upon an account and final settlement of the affairs of the concern when the case goes back, it appears to us, from the record as presented here, that it will be necessary for the court below to order the other parties to be brought in, in order that they may have a hearing, so far as their interests are concerned. If, however, the plaintiff is content with a judgment establishing his right and for a conveyance of the interest to which he is entitled, we see no reason why he may not waive any relief which requires the presence of other parties, and have the relief indicated awarded on the record as it now stands. Perhaps a separation of the interests of the plaintiff from that of defendants would afford sufficient protection to the plaintiff without in any other respect interfering with the association.

Judgment reversed, and cause remanded for further proceedings in the court below.

MCCONNELL V. DENVER ET AL.

(35 California, 365. Supreme Court. 1868.)

Partnership relation of owners in ditch companies. Unincorporated ditch companies, organized for the sale of water, the stock in which is bought and sold at the pleasure of the owners, without consulting the co-owners, differ from ordinary commercial partnerships. Some of the incidents of a partnership pertain to such companies, and some of mere tenancies in common likewise pertain to them.

Restricted power of member of ditch company. A member of such a
company has no general authority by virtue of such membership to
bind the company by his contracts.

Power of superintendent of ditch company. The superintendent or man;
aging agent of such company has no authority to bind the company by a
note, given for materials used by the company, unless the authority to
give such note is expressly conferred upon him by the company, or may
be implied from his acts recognized by the company, with full knowl-
edge.
'Note of ditch company. If an unincorporated ditch company authorizes
its superintendent to give the company note for materials before then
purchased by the company, all the members are bound by the note,
whether they were such members when the materials were purchased
or not.

2 Company contract limited to proceeds of ditch. If lumber is furnished a
ditch company under the agreement that it is to be paid for out of the
proceeds of the ditch of the company, and the proceeds have all been
faithfully applied in payment according to the agreement, the person
who furnishes it is not entitled to recover the deficiency against the
members of the company.

Appeal from the District Court, Sixth Judicial District, City and County of Sacramento.

January 31, 1866, the plaintiff commenced an action against the defendants on the following promissory note:

"$2,600.

COLOMA, June 7, 1862.

On or before the first day of October next, the Coloma Canal Company promise to pay Samuel McConnell & Company the sum of two thousand six hundred dollars.

A. St. C. DENVER,

Secretary and agent for the Coloma Canal Co."

1 Jones v. Clark, 11 M. R. 473.

2 Anspach v. Bast, 12 M. R. -; Linn v. Butler, 8 Colo. 355.

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The Coloma Canal Company, in the winter of 1861 and 1862, consisted of the defendants Denver, Sanderson, Donahue, Weller and Mrs. Robinson. Its property was a ditch for the conveyance of water, on the north side of the South Fork of the American river, in El Dorado county. The capital stock of the company was forty-two thousand dollars, divided into eighty-four shares of five hundred dollars each. To each owner of stock a certificate like the following was issued: "COLOMA CANAL COMPANY.

"No. Shares, 84.

[54]

CAPITAL STOCK $42,000.

"To N. W. CHAPMAN:

Par Value, $500.

"This certificate entitles you to one share in the COLOMA CANAL COMPANY, the same having been registered on the books of the company this the 7th day of September, A. D.

1852.

"S. S. BROOKS, Secretary. FRANCIS CLARK, President."

Mrs. Robinson owned twenty-five shares, but prior to June 2, 1862, for about one year, the same had been in the hands of defendant Latham, as a pledge to secure money she owed him. On said second day of June Latham became absolute owner of the stock. For several years prior to 1861 the company had been transacting business, and during most of the time, particularly for three years before and during 1861 and 1862, defendant Denver had acted as superintendent. The company, before 1861 and 1862, had not been in debt. In the winter of 1861 and 1862, during the flood, a portion of its flume was washed away. The plaintiff and Samuel McConnell, who were at that time partners, under the name of Samuel McConnell & Co., at request of defendant Denver, furnished lumber for the company, which was used in the repair of the flume. On the day of the date of the note Denver, at request of the plaintiff, gave the same. Before the action was commenced there had been several payments made on the note, as follows: April 9, 1863, five hundred dollars; October 28, 1863, two hundred dollars; June 4, 1864, two hundred dollars; June 17, 1864, two hundred dollars; September 5, 1864 one hundred and sixty-two dollars and fifty cents; May 1, 1865, eighty-one dollars and twenty-five

VOL. XI-28

cents; and June 5, 1865, eighty-one dollars and twenty-five cents. Samuel McConnell died in 1865, and plaintiff sued as his surviving partner.

The court dismissed the action as to defendant Latham, and rendered judgment against the other defendants, except defendant Weller, who had not been served with summons.

The defendants, against whom judgment was rendered, appealed, and the plaintiff appealed from that portion of the judgment in favor of defendant Latham.

The other facts are stated in the opinion of the court.

BOWIE & CATLIN, for defendants and appellants.

ROBERT ROBINSON, for plaintiff and respondent.

By the Court, SAWYER, C. J.

We think the evidence insufficient to justify the third finding, to the effect that the defendants executed the note upon which the action is brought, by their agent, Denver, and that said Denver had full power and authority to make and execute said note, by virtue of his being a partner in and agent for the company.

There is no conflict in the evidence as to the material facts in the case, and it shows that the defendants constituted one of the ordinary unincorporated ditch companies so common in the mining regions, owning a ditch which conveyed water from a certain stream to a distant mine, for sale to the miners for mining purposes. The interests were held by the owners in different proportions, in shares, represented by certificates of stock, which were bought and sold at the pleasure of the owners without consulting their co-owners. The ordinary relations of the stockholders in these associations, like those in the usual mining companies organized and conducted upon similar principles and sometimes called mining partnerships, are not those of strict commercial partnerships, but are more in the nature of tenancies in common: Bradley v. Harkness, 26 Cal. 77; Skillman v. Lachman, 23 Cal. 201; Duryea v. Burt, 28 Cal. 587; Abel v. Love, 17 Cal. 237; Settembre v. Putnam, 30 Cal. 493. Some of the incidents of a partnership pertain to them, and some of mere tenancies in

common; but thepowers of the several members by virtue of being members are different from those of commercial partnerships. A member of one of these associations has no general authority, by virtue of such membership, to bind the company by his contracts. Nor has the managing agent any authority other than that conferred upon him, either expressly or by necessary implication from his acts recognized by the company, with full knowledge of the acts at the time. of the recognition: Skillman v. Lachman, supra. The finding of the court evidently resulted from overlooking this distinction between commercial partnerships and associations of this character. The remarks of the court in Skillman v. Lachman are in point: "But there is still a more important objection to the findings and judgment in this case. There was no evidence of any authority having been given by the company or Lachman to Sprout, a member of the company, and the managing agent, or foreman, to execute a promissory note in the name of and binding the company, for the indebtedness due the plaintiff, or any general authority to that effect. In fact, several members, including Lachman, testified that they never gave any such authority. It is clear that the law does not, in the case of mining partnerships, imply any such authority, either to a member of such partnership or to its managing agent. In this respect the law is different from that of ordinary commercial partnerships. It was clearly the duty of the plaintiff to prove that the person executing the note in the name of the company had power and authority to do so. He might have had power to purchase the lumber for the use of the mine, but that is very different from authorizing him to execute a note in the name of the company bearing interest at the rate of three per cent. per month." 23 Cal. 207.

So, in the present case, there was not only no evidence to show that Denver had express authority to execute the note, but it was affirmatively shown that he had not; and it was further shown that one of the members at least, who is defendant, had expressly declared to him that he would not consent to the incurring of any personal responsibility in any form whatever. The making of notes was no part of the ordinary business of the company, nor was it a necessary

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