Harris & Jacoby v. Hillegass

Citations

• 54 Cal. 463

Syllabus

<p>Partnership.—Hillegass, (defendant’s intestate) at Philadelphia, in 1849 —being about to start for California—entered into a written contract with the plaintiffs, then his partners, under which they were to have a certain proportion of the proceeds of his mining and other business, af ter first deducting $1,500 advanced by the firm; Held, that the contract created a partnership; there being both a community of interest in the original capital and in the profit and loss.</p> <p>Id.—Stale Demands—Pleading—Demurrer.—H. came to California, and died here in 1876, leaving property of large value. In an action for an accounting brought against his administrator—the complaint alleging that the partnership was never dissolved until the deatii of H., but also alleging, and attempting to excuse the fací., that no demand had ever been made for an accounting in tile life-time of H: Held, upon demurrer to the complaint— without deciding whether in any case an objection that the demand is stale can he taken hy general demurrer—that in this case, in view of the allegation that the partnership was never dissolved, the objection did not lie ; although the other facts stated might tend strongly to show, or prima facie might even show, that in point of fact the partnership had been dissolved long before the date alleged.</p> <p>Pleading—Probative and Ultimate Facts.—Even where a statement of evidentiary facts, if admitted to be true, would establish prima facie an ultimate or pleadable fact, they cannot be substituted in a pleading for an allegation of the fact to be put in issue.</p>