struction of certain buildings for a contracting company, it is held that the finding that the document upon which the plaintiff relied as an account stated constituted such an account is supported by the evidence.

ID. OPENING OF ACCOUNT-FRAUD OR MISTAKE.-In the absence of allegation and proof of fraud or mistake which taints the entire contract, the court will not open and unravel it as if no accounting had been made, but the settlement will be binding except for the errors shown.

ID.-EVIDENCE-PROOF OF OMISSIONS AND ERRORS.-In an action upon an account stated it is proper to allow evidence of omissions and errors therein and find in favor of plaintiff in accordance with the facts.

ID. INTEREST-ALLOWANCE FROM COMMENCEMENT OF ACTION.-In an action on an account stated, interest is allowable from the date of the commencement of the action. ID.-SUPERINTENDENCY OF BUILDINGS FOR CORPORATION-PERCENTAGE OF PROFITS STATUS OF PARTIES.-Contracts between a corporation engaged in the general contracting business and an individual who is to superintend the construction of certain buildings for the former for a percentage of the "net profits" do not make the relationship of the parties that of partners.

ID. CONSTRUCTION OF TERM "NET PROFITS"-EVIDENCE.-Evidence of similar contracts made between the parties is admissible to assist the court in interpreting the term "net profits."

APPEALS from judgments of the Superior Court of the City and County of San Francisco and orders denying a new trial. E. P. Morgan, Judge.

The facts are stated in the opinion of the court.

William P. Hubbard, for Appellants.

Aitken & Aitken, R. H. Countryman, and Frank W. Aitken, for Respondent.

CHIPMAN, P. J.-Two actions between the same parties are included in the appeal, one having been numbered in the court below 17,022, the other 18,032, both having been tried together. The transcript on appeal covers 1,292 printed pages and the briefs comprise half as many more. The appeals are by defendants from the respective judgments and from orders denying their motions for new trials made in each case, and

354 alleged errors of law are specified in the assignments of

errors.

The complaint in the first action, No. 17,022, was filed June 6, 1908. It is therein alleged that defendant McPhee Company was a corporation organized and existing under and by virtue of the laws of California, with its office and principal place of business in the city and county of San Francisco; that defendants Daniel McPhee and Anna McPhee were at all times husband and wife; that defendant Daniel, during all the times mentioned, was doing business under the name and style of McPhee Company; that defendants sued fictitiously as First Doe, Second Doe, and Third Doe were the owners of one share each, and defendants Daniel and Anna McPhee were the owners of 2482 shares each of the capital stock of said corporation, the entire issued capital stock being five hundred shares; "that said defendants other than the defendants sued herein as stockholders of the defendant McPhee Company are indebted to this plaintiff in the sum of $13,649.27 upon and as for and upon an account stated made by and between said defendants except said defendants sued herein as stockholders and this plaintiff." It is then alleged that "said defendants other than those who are sued as stockholders of said defendant corporation within two years last past. entered into written agreements with this plaintiff from time to time, by which it was agreed that in the course of the erection and construction of certain buildings, this plaintiff should act as the superintendent thereof and receive forty per cent of the net profits of the erection and construction of said buildings"; that plaintiff performed his part of said contracts and from time to time received various sums of money on account thereof; that on May 28, 1908, plaintiff and defendants "other than said defendants sued as stockholders' entered into an account stated and the amount of the indebtedness to plaintiff was fixed at the sum of $13,649.27, which said defendants promised to pay; that no part thereof has been paid, and that said stockholders are liable for their proportionate amount of said indebtedness.

In a second count of the complaint it was stated "that this plaintiff performed certain work and rendered certain services to defendants other than said defendants sued herein as stockholders of the defendant corporation," and that plaintiff was to receive forty per cent of the net profits received for the

construction of said buildings; that the said profits thereof were $65,229.56; that forty per cent thereof is $25,991.82; that plaintiff has been paid $12,342.45, leaving due him the sum of $13,649.27. The prayer is for the last-mentioned sum, judgment being asked against the five stockholders named for their proportionate amounts.

A demurrer to the complaint was overruled and defendants, other than those fictitiously named, answered: Denied that Daniel McPhee "was doing business under the name and style, or name or style, of McPhee Company, otherwise or at all except under the name of McPhee Company, a corporation"; denied that defendant Anna was the owner of any greater number of shares of the capital stock of said corporation than ten shares; denied the indebtedness sued for; denied that they entered into written agreements with plaintiff by which it was agreed that plaintiff should act as superintendent of the construction of the buildings referred to and should receive forty per cent of the net profits thereof; denied performance by plaintiff of the conditions of the contracts alleged; denied making an account stated and that any amount of indebtedness was fixed. The averments of the second cause of action were specifically denied.

The trial commenced on November 17, 1909, and, before its conclusion and on December 1, 1909, an amended complaint was filed, containing two counts. The allegations were the same as in the original complaint, with these exceptions: W. M. Willett, J. F. Campbell, and W. E. Lowe were substituted as defendants for First Doe, Second Doe, and Third Doe; it was alleged that defendant Daniel McPhee was the owner of 483 shares and defendant Anna McPhee of ten shares of the capital stock of said corporation; that the account stated was for $13,749.27 and that one hundred dollars had been paid thereon; the amount alleged in the second cause of action to be due was $15,649.27 and judgment was prayed for that amount.

A demurrer to the amended complaint was overruled and an answer was filed with similar denials as those contained in the answer to the original complaint.

On April 6, 1910, an amendment to the answer was filed, setting up two additional further and separate defenses, in the first of which it was alleged that in any account stated between

the parties, mistakes, errors, and omissions were made therein by the bookkeeper who prepared "such alleged account stated," and that it showed only gross profits and losses," the items being enumerated and aggregating $14,544.59 "as appearing in favor of the plaintiff herein." It was also alleged, as a further and separate defense, that both counts of the complaint were barred by the provisions of subdivision 1, section 339, of the Code of Civil Procedure.

On April 1, 1912, plaintiff filed an "amendment to amended complaint" to be added to the first count, setting up a mistake by the bookkeeper by which five thousand dollars of the net profits made by the defendant corporation were omitted from the account upon which plaintiff was to receive forty per cent, "and if said account stated had expressed said real intention of plaintiff and the defendant corporation, said account would have shown an additional five thousand dollars of net profits, and said account should and would have been stated for the correct sum due plaintiff, to wit: the sum of $15,749.27." A denial of these allegations was filed by defendants.

The complaint in action No. 18,032, filed July 31, 1908, contained similar averments to those set up in the original complaint in action No. 17,022, alleging an indebtedness of $1,123.78, for which amount judgment was asked. An amended complaint was filed December 1, 1909, containing the same changes as made in the amended complaint filed in the other action on the same date. Answers were filed to both pleadings, denying the material allegations thereof.

Very full findings were filed in each action. A nonsuit was granted as to the defendant Daniel McPhee, doing business under the name of McPhee Company. The judgment in action No. 17,022 was in favor of plaintiff against the corporation for the sum of $14,491.33, with interest from the date of the commencement of the action, the aggregate being $18,529.15; judgment was also entered against defendant Daniel McPhee for $17,899.17, and against defendant Anna McPhee for $370.56. In action No. 18,032, the judgment against the corporation, including interest from the commencement of the action, was $1,427.78; against defendant Daniel for $1,379.20, and against defendant Anna for $28.54.

As is apparent from the pleadings, the corporation defendant McPhee Company was engaged in the general contracting

business in San Francisco and plaintiff was its superintendent of construction. Six written agreements were entered into by the plaintiff and defendant corporation which were received in evidence and marked, respectively, exhibits 1 to 6. Exhibit 1 was as follows:

"San Francisco, Cal., April 1/05.

"This is to certify that Grant Fee is entitled to 40% of the net profits on our contract, Fairmont Hotel dated, Jan. 13/05, salaries and office expenses to be charged to the contract.

"All money allowed Grant Fee during construction to be charged against his 40%, on settlement at completion of the contract.

Exhibit No. 2 was as follows:

"MCPHEE COMPANY,
"D. MCPHEE, Pres't."

"San Francisco, Cal., Nov. 3/05. "This is to certify that Grant Fee is entitled to 40% of the net profits of our contract, Deming Building, located on the South East corner of Post and Stockton St., S. F.

"Should there be a loss on the building it is agreed that 40% of the net loss on the Deming Building, is to be deducted from Grant Fee's share of the profits on our contract, Fairmont Hotel, dated Jan. 13/05." (Same signatures as to Exhibit No. 1.)

Exhibit No. 3, dated June 25, 1906, certified that plaintiff was entitled to forty per cent of the net profits on seventeen specified contracts.

Exhibit No. 4 was dated December 1, 1906, covered three separate contracts and contained the following clause: "Should there be a loss on any of the above named contracts it is agreed that Grant Fee is to assume 40% of such loss the same to be deducted from his share of the profits."

Exhibit No. 5, dated April 18, 1907, covered four separate contracts and contained a clause in the same words and figures as last above quoted.

Exhibit No. 6, dated September 28, 1907, covered two contracts and provided that in case of loss on said contracts, "Grant Fee is to stand 40% of said loss same to be deducted from his share of profits on other work."

Appellants, in their opening brief, urge the following general points as demanding reversal of the judgments: