property was $22,000, upon the making of which the title was taken in the name of Johnston, who thereafter, without plaintiff's knowledge, conveyed it to the Title Insurance & Trust Company, in trust, which company, as evidence of the trust and interest therein, issued four certificates, one of which, issued in the name of H. B. Smith, was for a two twenty-seconds interest in the property, which certificate is conceded by defendants to have represented the interest of plaintiff in said property. Notwithstanding plaintiff's contention that he was by the terms of the agreement not required to contribute any money towards carrying out the enterprise, it seems that defendant Johnston, some time after the purchase, called upon him and suggested that inasmuch as Mr. Smith was carrying his part of the burden, the latter desired as an evidence of good faith on his part that he should give him a note for $2,000, at the time stating that he would not be called upon for the payment thereof. Plaintiff gave the note as requested and this note was at all times retained by defendants and produced at the trial, and defendants at all times retained possession of the certificate for a two twentyseconds interest in the property for which, according to their testimony, the note was given. At the time of the purchase, real estate of the character purchased was quite active in the vicinity of Los Angeles and it was believed by all parties concerned that a quick turn thereof would be made at a profit. In 1907, however, there was a cessation of such activity and the carrying of the property became a burden, which it appears was assumed by defendant H. B. Smith. At no time was plaintiff called upon to contribute anything towards the carrying charges, nor the payment of the note. That an agree ment was entered into to form a partnership for the purchase of property. the parties thereto to share in the profits, the consideration of which, so far as plaintiff was concerned, was his knowledge, counsel and advice, and that thereafter the parties joined in selecting for purchase and did, in accordance with the agreement to share in the profits of the joint adventure, acquire in the name of Johnston the property in question, clearly appears from the evidence offered by plaintiff. [1] That the undissolved relationship and transaction had thereunder entitled plaintiff to relief, is supported by Koyer v. Willmon, 150 Cal. 785; Doudell v. Shoo, 20 Cal. App. 224; Whitley v. Bradley, 13 Cal. App. 721; Coward v. Clanton, 79 Cal. 26; Bates v. Babcock, 95 Cal. 484, and Arnold v. Loomis, 170 Cal. 95. Moreover, while conceding that plaintiff acquired such one-eleventh interest in the profits of the deal for which he gave his promissory note, defendants insist that he voluntarily surrendered the same by returning the certificate issued in evidence thereof. But plaintiff's testimony is that the certificate was never delivered to him, nor did he even know of its existence, and hence he could not and did not return it. The fact that defendants retained his note, producing it at the trial, showing that it had never been returned to him, taken in connection with plaintiff's testimony, sufficiently establishes the fact that plaintiff never at any time surrendered the interest conceded by defendants to have been acquired by him, nor agreed to a release of such interest. Hence, if the transaction, as claimed by defendants, be deemed to have created a trust wherein plaintiff to the extent of a one-eleventh interest, was a beneficiary in the profits arising therefrom, he was entitled to have an accounting made by defendants as to their management of the property and to receive the interest which the decree awarded him. [1] As we view the record, it is immaterial whether the transaction, in a technical legal sense, constituted a partnership or a trust, since in either case plaintiff was entitled to at least a one-eleventh interest in the net profits derived from the property and for an accounting by defendants of their management thereof. The language used in Bedolla v. Williams, 15 Cal. App. 741, is peculiarly applicable here.

It is there said: "We think it unnecessary in this case to decide whether or not the agreement between the parties constituted them copartners, or provided for such a joint venture as would entitle either of them to an accounting from the other, because the allegations of the complaint show that the plaintiff is entitled to some remedy, either legal or equitable. In such a case, where, as here, an answer has been filed, the court may grant plaintiff any relief consistent with the case made out by him and embraced within the issues." The evidence received on behalf of plaintiff and considered in connection with the testimony of defendants, together with the reasonable inferences to be drawn therefrom, clearly shows that as to the property described in the complaint a fiduciary relation, never dissolved, nor, until shortly before the commencement of the action, repudiated, was in fact established, from which it follows that, whatever its technical nature, plaintiff was entitled to an accounting by defendants of their management of the property involved, and, as found by the court, to not less than a one-eleventh interest in the net profits arising therefrom.

Thus viewed, appellants insist that any right of action on the part of plaintiff would be obnoxious, not only to the statute of frauds, but to the statute of limitations. [2] In reply to this we may say that the statute of frauds does not prevent parol proof for the purpose of showing an interest in the profits to be derived from the sale of lands, but declares that an agreement by which an estate or interest in lands is to be created must be in writing. (Bates v. Babcock, supra.) To the same effect are Doudell v. Shoo, supra, and Bond v. Taylor, 69 S. E. 1004. Appellants failed to plead the statute of limitations. [3] However, it sufficiently appears that if the transaction, constituted a trust, it was a voluntary trust, against which the statute of limita. tions could not begin to run until the trustee repudiated it (Arnold v. Loomis, supra), and this from the record appears to have been a short time before the commencement of the action.

As

We deem it unnecessary to notice a number of alleged errors predicated upon rulings of the court in the admission and rejection of evidence. appellants in their brief say, these are minor matters, and an examination of them show that, under our view of the case, they could in no event have prejudiced the substantial rights of defendants. In this connection, suffice it to say that the record, taken as a whole, shows the case to be one for the application of section 4% of article VI of the constitution, and, conceding the existence of technical errors, they have not resulted in a miscarriage of justice; and, conceding, further, a conflict in the evidence and inconsistencies in the testimony of plaintiff himself, it was the duty of the court, so far as possible, to reconcile such conflicts and inconsistencies, and in determining the weight thereof it might accept plaintiff's evidence in part and discredit it in part.

The judgment and order are affirmed.

We concur:

CONREY, P. J.

JAMES, J.

Civil No. 1890.

SHAW, J.

Third Appellate District. September 30, 1918. FERD A SLOSS, Plaintiff and Appellant, v. J. A. HOLLAND and M. ELIZA WITTENBROCK, Defendants and Respondents.

[1] PROMISSORY NOTE--UNLAWFUL CONSIDERATION-PROMOTION OF LOTTERY SCHEME. A promissory note given for money advanced by the payee to the maker with the understanding and purpose of both parties that it should be used for the promotion of a lottery scheme, and which was so used, is void and unenforceable.

Appeal from the Superior Court of Sacramento County-Charles 0. Busick, Judge.

For Appellant-H. N. Mitchell, H. N. De Wolfe.

For Respondents-Martin I. Welsh, Ralph H. Lewis.

The action was brought upon a promissory note. Among the allegations found in the answer is this: "That the consideration if any for said instrument" (referring to said promissory note) "was and is contrary to the policy of law and contrary to good morals, in this: that the said twenty-five hundred dollars was on the date aforesaid invested by plaintiff in said lottery business with the express understanding and intention and purpose that said money was to be used in operating said business for the joint benefit of defendant Holland and the plaintiff herein. That the said plaintiff well knew at the time he so invested the said twenty-five hundred dollars that he was investing the said sum in a business that was contrary to law and contrary to good morals." A motion was made by plaintiff to strike out the answer and also for a judgment on the pleadings, but each was denied by the court, and the appeal is from a final judgment in favor of the defendants. While the answer is somewhat open to criticism, and some averments are framed upon the erroneous theory that defendants could dispute the obvious character of the written instrument upon which the action is based, yet it does appear from said answer that the said twenty-five hundred dollars was advanced by plaintiff to defendants with the understanding and purpose of all the parties that it should be used for an unlawful purpose, namely, the promotion of a lottery scheme and that it was so used.

In such case, the law permits an inquiry into the intention of the parties as to how the money shall be used, and, if it be found that a violation of the law is contemplated, the process of the court is not open to either party to enforce any pecuniary obligation that may seem to arise out of the transaction. Each must be content to rely upon the other's sense of honor and responsibility for the enforcement of any promise or supposed obligation. Of course, in ordinary transactions, it is of no concern of the courts what disposition is made of money borrowed, but not so when it is loaned for the express purpose of aiding in the violation of the criminal law. Such intention vitiates the whole transaction, and the contract is regarded as utterly without legal efficacy. Many cases might be cited to the point, but, it is sufficient to refer to a few decisions of our supreme court.

In Fuller v. Hutchings, 10 Cal. 523, the validity of a check given for a gambling debt was in controversy. The court said: "As to all persons except a bona fide holder without notice, the check is void. The statute so expressly declares, and such would be the rule of law independent of the statute. With checks, as with promissory notes, the presumption is that they are given upon a valid consideration, but this presumption being rebutted, the necessity is thrown upon the holder of proving that he received it in good faith without notice of the illegality of the consideration."

Mills and Lumber Co. v. Hayes, 76 Cal. 387, involved a contract for the manufacture and sale of lumber executed for the purpose of increasing the price of lumber, limiting its supply, etc. It was said: "The general rule is, that an illegal contract is absolutely void and can not form the basis of judicial proceedings. This is equally so in law and equity. The illegality vitiates the contract between the immediate parties, as well as in respect to third parties. A contract tainted with the vice of illegality

creates no obligation, not because of the rights of the parties to it, but because the public is interested."

In Chateau v. Singla, 114 Cal. 91, the action was for the dissolution of a partnership and for an accounting. The partnership was formed to carry on the business of letting furnished apartments for the purpose of prostitution. The court declared: "If this contract of copartnership had for its purpose the letting of apartments for purposes of prostitution, and if the business of the copartnership, as pleaded by the answer, was the doing of this precise thing, then the copartnership contract was illegal, against good morals, against public policy, and against the express mandate of the statute, and equity would no more entertain an action founded on such a contract for the relief of either of the parties to it, than it would entertain an action between two thieves for an equitable division of their plunder. A void contract, a contract against public policy or against the mandate of the statute, may not be made the foundation of any action, either in law or in equity."

Union Collection Co. v. Buckman, 150 Cal. 159, involved a promissory note given for a gambling debt. The court said: "At the outset, therefore, it may be stated that it is clear that under the settled law of this state the consideration for such notes was contra bonas mores and unlawful (Civ. Code, secs. 1607, 1667), and, that McMahon (the payee) could not have recovered thereon." It was further held in that case that a renewal note given in place of the original note and also a compromise of the claim based upon said illegal consideration were both tainted by the same illegality, and that the courts would not entertain any action to enforce the same, but would, even against the express consent of the parties, withhold all relief if the illegality of the consideration is made to appear.

[1] We have a similar situation here. The case would be no different in principle if the action were for an accounting or for money had and received. The unlawful purpose for which the money was loaned to defendants is an inseparable part of the consideration for the note and renders the contract against public policy and void under the plain provisions of the statute. Accepting the theory either of a loan or of an investment, the result is the same.

In the absence of the evidence we must assume, of course, that the intention of the parties as to the use of the money was as contended

for by respondents.

The judgment is affirmed.

We concur:

HART, J.

CHIPMAN, P. J.

BURNETT, J.

Civil No. 2581. Second Appellate District. September 30, 1918. CHARLES C. MICKEL, Plaintiff and Respondent, v. J. B. ALTHOUSE, W. HOWARD BORDEN and AL. BORDEN, Defendants and Appellants.

[1] NEGLIGENCE-PERSONAL INJURIES-ELECTION OF EMPLOYER TO COME UNDER ACT OF 1911-PLEADING SUFFICIENCY OF COMPLAINT.-In an action for personal injuries received in 1913, a statement of facts showing want of ordinary care on the part of the employers was sufficient to enable the plaintiff to state a cause of action, and it was not necessary for the plaintiff to allege facts showing gross negligence or willful misconduct where he did not allege that the defendants, or either of them, had ever filed with the industrial accident board a written statement to the effect that they ac

cepted the provisions of the act of 1911; if such election had been made, the fact would be within the knowledge of the defendants, and the burden was upon them to plead such fact in bar of the action.

[2] ID. CONSTRUCTION OF SCAFFOLD KNOWLEDGE OF UNSAFE CONDITION— FINDING OF JURY-NEGLIGENCE OF FELLOW-SERVANT AS DEFENSE.-Where the scaffold which gave way letting the plaintiff fall to the ground and causing the injury, was built by a fellow employee under the direction of one of the defendants out of stuff handed him by the plaintiff, and the plaintiff did not know of the unsafe condition of the scaffold when he went upon it, the jury was justified in finding that the plaintiff's injuries were caused by the negligence of the defendants, represented by their employee who built the scaffold, and that the plaintiff was not negligent in failing to see and know that his fellow employee had not securely fastened the scaffolding to the house; and under the act of 1911, which was in force at the time of the injury, the fact that the person who built the scaffold was a fellowservant of the plaintiff is not a defense to his action against the defendants.

[3] MASTER AND SERVANT-WRITTEN AGREEMENT TO FURNISH LABORRIGHT OF OWNER TO DIRECT WORK-APPORTIONMENT OF INSTALLMENTS-EFFECT. -Where the owner entered into a written agreement for the construction of a house and garage wherein the contractors agreed to furnish all carpenter labor for an agreed sum, the facts that the owner had the right to say how the work should be done, and apportioned his installments of payments according to the number of men employed on the work, are not sufficient, as against the terms of the written agreement, to prove, and do not tend to prove that a person employed on the building was an employee of the owner.

[4] EVIDENCE-EXISTENCE OF WRITTEN CONTRACT-EXPERT TESTIMONYADMISSIBILITY-WEIGHT.-While expert testimony is properly admissible to prove the comparative ages of documents and of writings, yet as a ground for the admission of such testimony there should be some reasonable length of time involved in the inquiry, or there should be some controversy over the genuineness of the signatures, or the order in which they were made, or concerning interlineations or other irregularities discernible in the document, and a mere statement by a handwriting expert that the signatures were made "not on the same day" can have no substantial weight for the purpose of contraditing the fact of the existence of the written agreement, as such statement is entirely consistent with the fact that they may have been made on the very next day.

[5] NEGLIGENCE-MASTER AND SERVANT-EVIDENCE-OWNER NOT LIABLE FOR NEGLIGENCE OF CONTRACTOR.-Under the evidence in this case the defendant owner of the property was not the employer of the plaintiff, and, therefore, was not responsible to the plaintiff for the negligence of the contractors who did the work.

Appeal from the Superior Court of Los Angeles County-Paul J. McCormick, Judge.

For Appellants-Frank Bryant.

For Respondent-Frank A. McDonald.

The plaintiff obtained judgment against the defendants on account of personal injuries alleged to have resulted from negligence of the defendants. The defendants appeal from the judgment, and from an order denying their motion for a new trial.

On the 20th day of February, 1913, the plaintiff was working as carpenter on a house then being constructed for the defendant J. B. Althouse on land owned by Althouse in the city of Los Angeles. In his complaint the plaintiff alleged that he was working under the direction of the defendants Borden. who had supervision over the plaintiff and the right to direct and control his services, and that those defendants were at that time acting for and on behalf of the owner of the property. In their answer the defendants alleged that the defendants Borden were not acting as superintendents for the owner, but that, on the contrary, they were acting as contractors and not otherwise, and that any work done or services performed by defendants Borden was done and performed under contract with the owner, and that the owner did