law, applicable to this branch of the case, in such a manner that the jury could not have been misled as to their duty.

4. The court did not err in giving or refusing certain instructions upon the assumption that the value of the stocks, as alleged in the complaint, was admitted by a failure to deny it in the answer.

This court has decided that the allegation of value in an action of trover is a material allegation, and if not denied, need not be proven: Carlyon v. Lannan, 4 Nev. 156; Blackie v. Cooney, 8 Id. 41.

The complaint alleges that since the "second day of September, A. D. 1878, and before the commencement of this action, said defendants appropriated and converted to their use said shares of stock. That the value of said shares of stock at the time of said conversion was twenty-three thousand three hundred and ninety dollars."

The evidence shows that the stocks were converted in the month of August, 1878, prior to the time alleged in the complaint, and there was no proof offered as to the value of the stock at that or any other time.

The statement of counsel that appellant, by failing to deny an allegation that be ween the second of September, 1878, and the third of March, 1879, the stocks were worth twentythree thousand three hundred and ninety dollars, does not admit that they were worth that or any other sum in August, 1878, is technically correct.

But the law is that the allegations as to the time of the conversion is immaterial, and by the failure to deny the allegations of the complaint, the defendant Pixley admitted "that the value of said shares of stock, at the time of said conversion, was twenty-three thousand three hundred and ninety dollars."

5. There is no error in the modifications made by the court to the second instruction, asked by the defendant Pixley relating to the question of notice and demand.

The judgment of the district court is affirmed.

BEATTY, C. J., dissenting.

I do not feel able to say that the error of the court in striking out the "lapse of time," etc., would not have prejudiced the appellant, and am therefore obliged to dissent.

VOL. XI-36

GODFREY ET AL. V. WHITE ET AL.

(43 Michigan, 171. Supreme Court, 1880.)

1 Status of partnership lands in equity. Lands that are part of a common partnership stock have in equity the character of personalty; and the legal title thereto is subordinated to the incidents of partnership funds and accounting.

Lands as assets. Partnership lands can not. in Michigan, be distinguished from other assets for purposes of settlement.

Jurisdiction not affected by locus rei sitæ. Proceedings between partners for an accounting, are always for the principal purpose of reaching a statement of money balances and a division of assets as personalty, and being essentially a personal and not a real controversy, may be carried on in courts within whose jurisdiction the parties live and do business, irrespective of the locus of the partnership lands.

2 Claim for personal services by partner. Partners can not ordinarily claim allowances for services exceeding those of their associates; but where those who do not expect to be personally charged with the business of the firm perform special services, it is proper to allow them compensation beyond their share of the profits, if they had an understanding with the others that they were to be compensated for them. Negligence of copartner. Failure in duty as a partner, may be a ground for dissolving the partnership, but not for a claim by diligent partners for compensation.

Compensation inter se not implied. An agreement to compensate can not be implied from the mere fact that services were rendered. Interest. Interest can not be allowed at ten per cent. on an accounting,

if there has been no written agreement for that rate. Advances by partners for the benefit of the business do not draw interest unless an intent that they shall do so can be inferred from usage or from circumstances, or unless it is understood by the partners that it shall be allowed.

Services of expert accountant. In a suit for an accounting, an allowance was properly made for a reasonable sum paid by complainant to a competent accountant for the purpose of arriving at an adjustment, the services being necessary and of use to all parties and therefore a common charge on them. Partition not incident to account. Partition may be made by consent; but it is not an incident to a suit for a partnership accounting in which the partners usually have a right to have the assets disposed of. If land belonging to the firm is not disposed of, it must be left as a distinct tenancy in common so that the tenants may have it partitioned in a separate suit.

1 West Hickory Co. v. Reed, 80 Pa. St. 38. 2 Levi v, Karrick, 13 Iowa, 344; 8 Id. 150.

Partition affected by lex loc'. Partition is a local proceeding, and can only be enforced in a court which has jurisdiction of the territory where the land is.

Depositions signed without reading. Deponents can not waive the reading of their depositions before signing them; depositions so signed are inadmissible in evidence.

1 Costs. Where all the parties to a partnership accounting appealed, and the case was so disposed of that neither prevailed rather than another, the cost of printing the record was apportioned according to the interest of the parties in the firm, and in other respects each party paid his own costs.

Appeal from the Superior Court of Grand Rapids.

Bill for partnership accounting. Both parties appeal.

NORRIS & UHL, for complainants.-A consent decree can not be materially varied without the assent of both parties: 2 Dan. Ch. Pr. 1029, n. 10; Leitch v. Cumpston, 4 Paige, 476; Jenkins v. Eldredge, 1 Woodb. & M. 61; Clark v. Hall, 7 Paige, 382; nor can it be set aside: Harrison v. Rumsey, 2 Ves. 488; nor appealed from: 2 Dan. Ch. 1459; Coster v. Clarke, 3 Edw. Ch. 405; Atkinson v. Manks, 1 Cow. 691; French v. Shotwell, 5 Johns. Ch. 564; De Carters v. La Farge, 1 Paige, 574; Monell v. Lawrence, 12 Johns. 521; partnership real estate is regarded in equity as personal property: 1 Story's Eq. Jur. § 674; 3 Kent's Com. 37; Story, Partnership, § 92–4; Pars. Partnership, 207, 350; Howard v. Priest, 5 Met. 582; Buchan v. Sumner, 2 Barb. Ch. 165; Delmonico v. Guillaume, 2 Sandf. Ch. 366; the mode of keeping partnership accounts in regard to real property belonging to the partners, has weight in determining whether it is partnership property: Fairchild v. Fairchild, 64 N. Y. 477; a decree for an accounting should order a sale of partnership realty, and the distribution of the receipts: Story, Partnership, 207, 350; Pars. Partnership, 474; Darby v. Darby, 5 Drury, 505; Stevens v. Stevens, 39 Conn. 474; Carter v. Bradley, 58 Ill. 101; Levi v. Karrick, 8 Ia.

150.

BLAIR, KINGSLEY & KLEINHANS, for defendant and appellant White.

CAMPBELL, J.

1 Von Schmidt v. Huntington, 6 M. R. 285.

The bill in this cause was filed to settle the affairs of an alleged partnership wherein the complainants claim an interest of one third, Alfred D. Rathbone one fourth and Geo. H. White and Amos Rathbone the remaining five twelfths. The other defendants have no interest in the chief controversy. The original arrangements, with slight exceptions, are not in dispute, although there is some difference of claim concerning their legal effect. The chief difference now arises out of claims for personal services of different partners, claim for interest on advances, and some special items of credits and charges. Defendant White sets up want of jurisdic. tion. The suit was brought in the Superior Court of Grand Rapids, and he insists the suit is local, and should have been in the Circuit Court for Kent County.

In the spring of 1865 an agreement was made verbally between complainant Freeman Godfrey, acting really on behalf of himself and his brother Silas, with defendants Amos Rathbone and George II. White, with a view to the acquisition of title to certain lands near Grand Rapids, valuable for gypsum beds, and then held in common by various owners. During that year the control of the title was completely vested in White and Rathbone. It was understood that complainants should have a third interest and pay a third of the purchase money. It was further understood that Alfred Rathbone, who was then just at the close of his minority, should have a fourth interest. In 1868 conveyances were made vesting in complainants and in Alfred Rathbone record title to those amounts.

The purpose of this purchase of lands was to develop the plaster beds and get out and sell plaster in its various shapes, rough and ground. At first there was no provision made for calcining the gypsum, but after a few years this was added to the other works. Godfrey & Brother had at the beginning, and continued to have, separate plaster, mills of their own, which, although claimed by White to have been connected with the common enterprise, are to be regarded as foreign to it.

From 1865 to 1871 the business was continued without any arrangement for caleining. In that year works were set up for that purpose. From that until 1876, when this bill was filed, the business was carried on in all its branches, and exten

sive improvements put on the land and large profits received. In July, 1876, the parties not agreeing, and failing to come to terms, this bill was filed, and the property was put into the hands of a receiver.

During all this interval the books were never balanced, and no accounting was ever had. A considerable part of the charges and credits in controversy never came into any recognized statement.

The absence of any written articles of partnership, and the failure to make any such entries as would bear upon the terms of the business, must be regarded as the cause of this litigation. Nearly all the questions we are called upon to determine should have been easily settled by the partnership books, if they had been kept as they ought to have been.

The bill set forth the partnership on the terms already referred to, carried on under the name of George H. White & Co., one object being to prevent the appearance of any common interest with Godfrey & Brother, the parties supposing an appearance of competition might help them. Complainants set out various services done by them in the business, and averred as a special ground of pecuniary allowance to them the turning over of a large amount of orders for plaster from Godfrey & Brother to the firm, for which a claim was made of $25,000, and also various other contracts with outside parties, on which similar credit was demanded. A claim was also made for personal services.

Defendants filed an answer and cross-bill admitting the common interest and business, but denying it was a partnership. These pleadings claimed that Godfrey & Brother's calcine business was to be combined with the other, and should be joined in the accounting. There were some other special allegations which need not be repeated here, but which may be referred to in another connection as far as necessary.

After issue had been joined under the cross-bill, and preparations made to ascertain the truth of some facts in it, a consent decree was made on the 9th of June, 1877, for the submission to a jury of the two main questions-first, of a partnership, and second, whether it included Godfrey & Brother's calcine business.

On July 18, 1877, when these issues came on to be heard,