in its terms, so that by virtue thereof the entire apparent legal title vests in the assignee, any contemporaneous collateral agreement by virtue of which he is to receive a part only of the proceeds, and is to account to the assignor or other person for the residue, or even is to thus account for the whole proceeds, or by virtue of which the absolute transfer is made conditional upon the fact of recovery, or by which his title is in any other similar manner partial or conditional, does not render him any the less the real party in interest. He is entitled to sue in his own name. Whatever collateral arrangements have been made between him and the assignor respecting the proceeds, the debtor is completely protected by the assignment, and cannot be exposed to a second action brought by any of the parties, either the assignor or other to whom the assignee is bound to account." Bliss, Code Pl. § 51; Davis v. St. Louis, 25 Fed. Rep. 786; Burril, Assignm. p. 152, § 103; Anderson v. Reardon, (Minn.) 48 N. W. Rep. 777. We find no error in the record to which any exception was taken. Judgment of the court below is affirmed, with costs.

ZANE, C. J., and BARTCH, J., and SMITH, J., concurred.

CHARLES L. HANNAMAN, RESPONDENT, v. LEWIS
KARRICK, APPELLANT.

PARTNERSHIP.-DISSOLUTION.-FORCIBLE EXPULSION.-Where one partner forcibly expels the other and takes forcible possession of the partnership effects and wholly excludes the other partner from all connection with the business, for a period prior

to the expiration fixed by the partnership agreement, such acts do not effect a dissolution of the partnership, but an action for an accounting lies for the effects and for the profits for the period during which the complaining partner was expelled from the business.

ID.-EXPULSION OF PARTNER.-COMPENSATION.-Where one partner expels the other and continues the business, he is not entitled, in the absence of an express stipulation therefor, to compensation for his services unless complete justice between the parties requires such an allowance. REFEREE.-FINDINGS.-APPEAL.-The findings of a referee which have been adopted by the court will not be disturbed unless it is clearly manifest that there was error or oversight.

APPEAL from a judgment of the district court of the third district, and from an order refusing a new trial, Hon. Charles S. Zane, judge. The opinion states the facts.

Messrs. Sutherland and Howat, for the appellant.

Messrs. Rawlins and Critchlow, and Mr. Waldemar Van Cott, for the respondent.

BARTCH, J.:

This is an action for the dissolution of a partnership, brought by one partner against his copartner. The case was referred to a referee with power to try the same and report a decree. The referee tried the case and made his report, which was confirmed by the court. The defendant thereupon moved for a new trial, which motion having been overruled, he prosecuted his appeal in this court.

It appears from the record that the plaintiff and defendant entered into an agreement of copartnership on the 3d day of February, 1886, for a term of five years from that date, to carry on a mercantile and laundry business. The plaintiff furnished $5,000 of the capital and the defendant $20,000, on $15,000 of which he was to receive interest until the principal was paid back to him. The defendant also loaned

the plaintiff $5,000. They were to share the profits and loss equally, and the plaintiff was to manage the business, but the defendant was not required to devote his time to it. Under this agreement they carried on the business until about the 1st of February, 1888, when the defendant, having become dissatisfied with the management, forcibly ejected the plaintiff, and took charge of the business himself. He continued so in charge until about the 1st of January, 1890, when he sold the stock in trade and business, without the assent of the plaintiff, and without recognizing any right in him, or accounting to him for any share of the profits or of the proceeds of sale. The defendant claims that the plaintiff had no interest in the concern, and that the firm of Hannaman & Co. was dissolved about the 1st day of February, 1888, by virtue of an oral agreement between the parties to the effect that the plaintiff was to have 60 days in which to raise the money to purchase the interest of the defendant, or, failing so to do, the defendant was to have the businesss by assuming the payment of the indebtedness of the firm and cancelling the $5,000 note which he held against the plaintiff. That such an agreement was made is denied by the plaintiff, who claims that he was forcibly ejected by the defendant, and that there was no dissolution of the firm. The evidence relating to this oral agreement was conflicting, and in relation thereto the referee found as a matter of fact as follows: "That about February 1, 1888, defendant, Karrick, took forcible, wrongful, and exclusive possession of all of said business, stock, partnership, books, and accounts, and the premises on which the same were situate, and on said last named date the defendant, Karrick, forcibly and wrongfully ejected the plaintiff therefrom, and ever afterwards prevented the plaintiff from participating and assisting in said business, and performing his part of said agreement, and in participating in any way

in the profits of said business." Counsel for defendant insist that the evidence is insufficient to justify this finding of fact, and that the circumstances relating to the transaction ought to be taken into consideration in passing upon the question of the existence of the agreement under which the defendant claims to have taken possession.

It cannot be doubted that where, in a case like this, the parties to the action are the principal witnesses, the circumstances tending to corroborate or contradict the testimony of either party are frequently of controlling weight, and should be considered in determining the question. It is noticeable, in examining this case, that counsel on both sides have noted in their briefs with considerable care and apparent candor the circumstances surrounding the making of the agreement, but nevertheless they have failed to remove the conflict in the testimony as it appears of record. This being the case, it is but fair to presume that the referee, in attempting to reconcile the conflict in the evidence, took into consideration the demeanor of the witnesses while testifying, their manner of testifying, and the apparent consistency, fairness, and congruity of their testimony. The opportunity thus to observe the witnesses afforded him great aid in arriving at the truth. This court has no such opportunity, and therefore the conclusions as to the facts reached by the referee and confirmed by the court below will not be disturbed, unless it is clearly manifest that there was error or oversight. Nothing of this kind is apparent from the record. There are circumstances which strongly tend to corroborate the testimony of the plaintiff, and support the finding in question. The defendant himself testified that under the agreement he was to assume and pay the debts of the firm and cancel the $5,000 note. There is nothing to show that this note was canceled. In fact, the contrary appears, for he avers in his answer that the plaintiff owes him $7,000, and the

testimony shows that this includes the $5,000 mentioned in the note. It is also shown that after the time alleged for the making of the agreement the plaintiff deposited $979.60 in the business, and the written notice from defendant to plaintiff, stating that the firm of Hannaman & Co. was dissolved, was dated May 16, 1888, which was long after the plaintiff had been ejected. It also appears that after the plaintiff was ejected from the store the defendant continued to credit himself with interest on the $15,000 loaned the firm under the partnership agreement. The plaintiff, after he had been forcibly removed, notified the defendant that he was desirous of performing his part of the partnership agreement. All these and other acts and circumstances shown by the record seem to be inconsistent with the theory that the parties were acting under and controlled by the agreement in question, and the finding of fact complained of seems to be a fair and reasonable deduction from the proofs, for if, as must be determined, there was no such an agreement, then the act of the defendant in forcibly ejecting the plaintiff and assuming the entire control of the business was wrongful and without authority, the plaintiff having had the right to manage the business under the partnership agreement.

The only remaining question material to the decision of this case is as to whether the action of the defendant in forcibly and wrongfully ejecting the plaintiff and assuming control of the firm's business dissolved the partnership. Can one partner take forcible possession of the property of a firm, and thereby effect a dissolution of the partnership before the expiration of the time specified in the agreement? There are authorities which affirm this proposition, and hold that, if the act of dissolution was wrongful, the party effecting it is simply liable in damages to the party injured. See Story, Partn. § 273; Skinner v. Dayton, 19 Johns. 513; Solomon v. Kirkwood, 55 Mich. 256, 21 N.