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equity to review the judgment of the county court and decide that it was wrong and set it aside or modify it in any The complainants prayed an appeal to this court, which was allowed but was not perfected.

way.

Courts of equity interpose to grant relief against judgments in a limited class of cases and always upon some recognized ground of equity jurisdiction. Examples of such interposition are cases where the defense is equitable and not admissible in a court of law, or where the complainant, without any fault or negligence in himself or his agents, was prevented from making his defense by fraud or deception or failed to make it through mistake, surprise or some accidental circumstance beyond his control. Where a defense is available at law and there is no sufficient reason for a failure to make it, a court of equity has no power to grant relief against the judgment and will not give a complainant a second opportunity to make his defense. (Gold v. Bailey, 44 Ill. 491; Carney v. Village of Marseilles, 136 id. 401.) In this case the defense was not equitable but was strictly and purely legal, and neither mistake, accident, fraud, deception or any other excuse for not making the defense in the county.court was either alleged or proved, but, with full knowledge of all the facts and with notice of the application for judgment, the complainants disregarded the proceeding in the county court until judgment was rendered, and when their motion to vacate the judgment was denied sought a court of equity to review and set aside that judgment. Neither cases where judgments have been reversed in direct proceedings by appeal or writ of error, nor suits in ejectment where a tax title has been held void, nor bills in equity for the removal of tax titles as clouds where the complainant is required to offer and do equity, have any legitimate bearing on the question here involved.

The decree is reversed and the cause remanded, with directions to dismiss the bill for want of equity.

Reversed and remanded, with directions.

(No. 12964.-Reversed and remanded.)

JAMES D. HAND vs. Edwin M. ALLEN et al. Appellants.— (W. J. PILKEY et al. Appellees.)

Opinion filed June 16, 1920—Rehearing denied October 6, 1920.

I. PARTNERSHIP-conduct of parties may show extension of a partnership for longer time than originally intended. Parties who have agreed to become partners in the purchase and operation of mines in a certain territory may by agreement extend their contract to other territories and other business and for a longer time than originally contemplated or otherwise change the terms of their agreement, and such variations of the contract may be shown not only by evidence of an express agreement but by evidence of the conduct of the parties.

2. SAME-partner or trustee cannot deal with subject of trust for his own private benefit. It is the duty of a trustee, partner or adventurer in a common enterprise to abstain from dealing with the subject of the trust, partnership or adventure for his own private benefit during the existence of the relation, and if the partner or co-adventurer gains any profit or advantage to himself by such dealing it will inure to the equal advantage of all.

3. SAME stockholders of corporation are not partners because they are joint owners of stock. A partnership implies a union of money, property, labor or skill, or some or all of them, for some purpose of commerce or business and a sharing of profits or loss, but the stockholders of a corporation, whether they own their stock jointly or severally, are not partners.

4. SAME-joint ownership of property does not make the owners partners. Mere tenancy in common or joint ownership of property does not make the owners partners.

5. SAME—when release executed by partner precludes his sharing in an accounting. Where parties enter into an agreement for the organization of a corporation to purchase and operate mining claims, one of the partners who executes a release of his option to purchase the claims and by which the corporation is to acquire the property is not entitled to any share in an action for an accounting against one of the other partners, who, after the owners of the claims have refused to go on with the transaction, ignores the previous agreement and purchases and operates the mines for his own benefit.

6. TRUSTS-trustee cannot purchase outstanding paramount title without notice to beneficiaries. A trustee cannot purchase an outstanding paramount title and hold it adversely to the beneficiaries

of the trust without notice to them of his resignation of the trust, and such a purchase will be held to have been made in subordination to the trust, but the trustee will be entitled to credit in his accounting for what he was compelled to pay in buying in the outstanding title.

7. CORPORATIONS-stockholders are not necessary parties to suit against the corporation. The stockholders of a corporation are not necessary or even proper parties to a suit against the corporation which affects them only in their character as stockholders and not as individuals, as the corporation represents the stockholders in all actions regarding the rights and obligations of the corporation.

8. ACCOUNTING-decree for accounting may require defendants to produce books before master-costs. A decree for an accounting may require the defendants to produce their books of account, papers and writings before the master and may require them to pay all costs to the date of the decree, but it is premature for the decree to further order that the defendants pay the expenses of the reference to the master.

APPEAL from the Circuit Court of Cook county; the Hon. MERRITT W. PINCKNEY, Judge, presiding.

DEFREES, BUCKINGHAM & EATON, (GEORGE T. BUCKINGHAM, DON KENNETH JONES, and WILFRED M. DoHERTY, of counsel,) for appellants.

MILLER, GORHAM, WALES & Noxon, for appellees.
MUSGRAVE, OPPENHEIM & LEE, for James D. Hand.

Mr. JUSTICE DUNN delivered the opinion of the court: This is an appeal by Edwin M. Allen and the Western Ore and Mining Company from a decree of the circuit court of Cook county which awarded an accounting and other relief against the appellants in favor of James D. Hand, W. J. Pilkey and W. C. Hosking.

The bill was originally filed by Hand against Allen and the Western Ore and Mining Company for the dissolution. of an alleged partnership between Hand and Allen and an accounting, but amendments were later made alleging an additional agreement between Hand and Allen on the one

hand and Pilkey and Hosking on the other for the acquisition of certain mines under options held by Hosking, by reason of which Pilkey and Hosking were entitled to certain interests. Pilkey and Hosking were made defendants to the bill as amended, which prayed that their interests, also, if any, should be ascertained and declared.

The bill as amended alleged the formation in Chicago in March, 1916, of a partnership between Hand and Allen for the acquisition and operation of ferro manganese mines in Lower California. The partnership was evidenced by a written agreement which provided that the acquisition, development and operation of the mines and the shipment of the ore should be in Hand's charge and the selling of the ore and financing of the partnership should be under Allen's control. Hand went to Lower California and began to prosecute the business of the partnership, acquired some leases and mined and shipped some ore, but in a few months he was obliged to shut down the mine because of the Mexican embargo on the exportation of manganese ore. Hand returned to Chicago and efforts were made to secure the raising of the embargo, which were unsuccessful. In the meantime, it was alleged, Hand, on behalf of the partnership and with Allen's knowledge and consent, during the spring of 1917 made careful investigation of manganese deposits in various parts of the United States and obtained numerous reports, samples and analyses of a large number of different manganese deposits in various parts of the country, all of which investigations and the information received during them he reported to Allen. Hand learned that considerable quantities of manganese ore were being shipped from the neighborhood of Phillipsburg, Montana, and that W. J. Pilkey, of Chicago, was interested in manganese property in Montana. He called upon Pilkey at his office in Chicago and was informed by Pilkey that he had a partner, Hosking, who had options on certain manganese properties in Phillipsburg, and that Pilkey and Hosking would

be willing to transfer a half interest in the properties and claims to Hand and Allen if the latter would pay the money and perform the conditions required in the options. Hand took certain samples of ore which Pilkey had shown him to Allen's office, told Allen of the information he had received and suggested that Hand should first investigate on behalf of the partnership and examine the field, and, if the examination should confirm the information, that the partnership should proceed to procure manganese ore from Montana instead of Lower California and that the claims or mines should be procured and handled by Hand and Allen under the articles of partnership already formed. After some hesitation, the bill alleges, Allen agreed to Hand's proposal. Thereupon Hand went to Montana, met Hosking and carefully investigated the various ore deposits and manganese properties in the vicinity of Phillipsburg. Hosking showed him an option which Hosking held for the Trout and Gem properties from Earle B. and James Patten and an extension of time thereon. Hand informed Allen that he believed a new lease could be procured from the owners of the Trout properties on better terms, and Allen requested Hand to procure from the owners, in writing, the best proposition possible. The bill then sets forth negotiations conducted by Hand and Hosking which resulted in Hosking obtaining from the John Caplice Company, the owner, a new lease and option on the Trout properties, and also the activities of Hand in examining the manganese field, investigating various properties and taking options thereon, reporting daily to Allen. Hand returned to Chicago, and on July 25, 1917, Hand and Allen met Pilkey and Hosking in Allen's office in Chicago. Allen then informed the others that William E. Corey, the president of the Midvale Steel and Ordnance Company, would finance the taking of the Trout and Gem properties under Hosking's option for a third interest and that Allen would form a corporation to take over the property under those

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