deceived by the misrepresentations of the other party. The fraud must have been practiced under such circumstances as to leave a reasonable inference that the injured party was deceived, and if the circumstances attending the transaction are such as to put a reasonable person upon inquiry, there can be no presumption of deceit.

It seems quite incredible that the plaintiff, while engaged in a hostile action against her husband, could cherish such unbounded love and confidence in him as is set forth in the complaint. For a period of sixteen months before she commenced her action for a divorce she was unable to live with him. His conduct had been such-he had so far forgotten his marriage vows-that she not only could not live with him, but she demanded that the bonds existing between them should be severed. With the improbability of the truth of plaintiff's statements, however, we have little to do in determining whether the facts are sufficient on demurrer; but a stale demand under such circumstances does not commend itself to a court of equity. The plaintiff severed all connection with her husband on October 11, 1884. This action was not commenced until about three years and a half thereafter.

It is clear that the question of property was not everlooled in the divorce suit. There was inserted in the complaint an allegation "that there was no common property." It is not at all probable that the plaintiff drew her own complaint and conducted her own case. The general rule is, that the judgment of a court of competent jurisdiction, having jurisdiction of the subject and the parties, is conclusive upon the same parties in any other proceeding in law or in equity, unless reversed or set aside 'in some mode prescribed by law. Judgments may be attacked on the ground of fraud and misrepresentation, it is true, but relief will not be granted unless the party seeking the same has been free from negligence. If the judgment has been

brought about through the carelessness of the injured party, he will not be relieved therefrom. (Quinn v. Wetherbee, 41 Cal. 250.) The relations of the plaintiff here with her husband were such that it was negligence, we think, on her part to rely upon him in a matter of so much importance as her property rights. Having determined that the bonds of matrimony must be dissolved, the first thought which would naturally occur to a person of ordinary caution and care would relate to the children, if there were any, and to the property. Plaintiff's failure to obtain independent advice and information was inexcusable carelessness. Something must have been said to her attorney about the property when drawing the complaint. That was the time and the occasion for consultation with her legal adviser as to her property rights. A simple question propounded at that time would have led to a different result.

The fact alleged, "that her husband systematically and persistently, and during all the time of their residence in California continuously, represented, declared, and asserted to plaintiff that the property he owned and had since said marriage was his sole and separate acquired property," etc., was sufficient of itself to create suspicion in the mind of plaintiff as a prudent person, and when continued for several years after separation and divorce, to lead her to make some inquiry on the subject.

We agree with the court below that "the complaint fails to show any equities entitling the plaintiff to relief." Judgment affirmed.

WORKS, J., THORNTON, J., SHARPSTEIN, J., Beatty, C. J., and MCFARLAND, J., concurred.

[No. 12813. In Bank.-April 23, 1889.]

WILLIAM M. COWARD, RESPONDENT, v. D. R. CLANTON, APPELLANT.

APPEAL FROM JUDGMENT-TIME FOR TAKING-DISMISSAL.-An appeal from a judgment taken more than one year after its rendition cannot be considered, and will be dismissed. PARTNERSHIP AGREEMENT TO DEAL IN REAL ESTATE-STATUTE OF FRAUDS.-A partnership agreement, the object of which is to deal in real estate and share the profits, is not within the statute of frauds. ID.-EXECUTED PAROL AGREEMENT PARTNER ESTOPPED TO DENY VALIDITY. In an action by one of the partners for an accounting of the profits realized under such an agreement, after the same has been executed, a partner who has received the entire profits is estopped from claiming that the agreement was void under the statute of frauds. ID.-CONSTRUCTION OF Agreement-PROFITS FROM SALES.-Where a partnership agreement to deal in land provides that one of the partners shall furnish the money to buy the land, and the other shall contribute his skill in selling it, the profits to be equally divided, and in pursuance thereof a tract of land is purchased and a part of it is sold at a profit, but for less than the purchase price paid for the entire tract, no profits are earned, within the meaning of the agreement, in which the partner contributing his skill is entitled to share. EVIDENCE-PLEADING ADMISSIBLE AS AN ADMISSION.-A pleading in a prior action between the same parties, although superseded by an amendment, is admissible in evidence in a subsequent action against the party filing it as an admission made by him. ID.--ATTORNEY'S AUTHORITY TO SIGN PLEADING IS PRESUMED.-Where such pleading is signed by an attorney, and not by the party against whom it is offered, but no objection to its admission is made on that ground, it will not be presumed on appeal that the attorney in signing acted without authority.

APPEAL from a judgment of the Superior Court of Yolo County, and from an order refusing a new trial.

The facts are stated in the opinion of the court.

George P. Harding, for Appellant.

The parol agreement that the plaintiff should sell land for the defendant is invalid. (Civ. Code, sec. 1624, subd. 6.) It is not rendered valid by calling it a partnership agreement. (Gray v. Palmer, 9 Cal. 617.) The court erred in excluding the answer of the plaintiff, filed in

another action, in which he claimed that in selling the land he was only a broker or agent for the defendant. While a litigant cannot be prejudiced by a superseded pleading in an action in which it is filed, it is admissible in another action against him. (2 Wharton on Evidence, 838; Duff v. Duff, 71 Cal. 513.)

E. R. Bush, R. Clark, and Hudson Grant, for Respond

ent.

The partnership agreement to deal in lands and share in the profits is not within the statute of frauds. (1 Collyer on Partnership, 11; Chester v. Dickenson, 54 N. Y. 1; 13 Am. Rep. 550; Bissell v. Harrington, 18 Hun, 81; York v. Clemens, 41 Iowa, 101; Sherwood v. St. Paul R. R., 21 Minn. 130; Snyder v. Woodford, 33 Minn. 175; 53 Am. Rep. 22, and cases there cited; Bunnell v. Traintor, 4 Conn. 573, and cases cited in footnote; Holmes v. McCray, 51 Ind. 358; 19 Am. Rep. 736; Dale v. Hamilton, 5 Hare, 369: Essex v. Essex, 20 Beav. 449; Hunter v. Whitehead, 42 Mo. 524.)

WORKS, J.-The plaintiff and respondent brought his action in the court below, against the appellant, upon a contract which he avers in his complaint was one of partnership, by which the defendant was to furnish the capital to purchase real estate, and the plaintiff to furnish the necessary skill and labor in reselling the same, and to pay certain expenses connected therewith, the parties to share equally the profits realized from such resales; that a certain tract of land was purchased in pursuance of the contract, in the name of the defendant; that there was a net profit resulting from such resale, which the defendant had received and failed to account for.

The prayer of the complaint was for a dissolution of the partnership, an accounting, and judgment for plaintiff for the share of the profits found to be due him.

The defendant denied the partnership, and alleged that

he had, by the contract, employed the plaintiff to sell the real estate, as his agent, upon terms similar to those set up by plaintiff.

The contract is alleged to have been in parol, and it is so found by the court.

The matter of accounting was referred to a commissioner, who found that the tract of land was purchased for $20,000, and was sold in parcels for an amount aggregating $24,156.50; that the net profits amounted to $3,420.66, and that respondent was entitled to recover $1,710.33, and judgment was rendered accordingly. Upon a motion for a new trial, the court below found that the findings of the commissioner that the whole of that tract had been sold were not sustained by the evidence. The decision was as fallows: "The motion for a new trial in this action having been submitted and considered by the court, the court, being fully advised, decides that the finding herein, to the effect that the plaintiff and defendant, or either of them, sold to Jeans Brothers twenty acres of land for $3,000, is not sustained by the evidence; and that the finding herein, to the effect that plaintiff and defendant, or either of them, sold to J. I. Eaton thirty acres of land for $4,500, is not sustained by the evidence; and that the finding that the plaintiff and defendant, or either of them, sold to H. D. Rodgers five acres of land for $1,050, is not sustained by the evidence; and the court in this decision finds and decides. that none of said sales were made by plaintiff and defendant, or either of them; and the court further adjudges and decrees that by reason of said sales not being made, the amount of the judgment heretofore rendered herein is too large by $812.50; and it is ordered that unless the plaintiff. within five days from the filing of this order, consents that said judgment be reduced to the sum of $1,500, that a new trial of said cause be granted, and that it be so ordered."

Upon this finding, the court ordered that a new trial