vanced by the plaintiff subsequent to the time that he received the notice from J. W. Breedlove and subsequent to the time that J. W. Breedlove had notice that the order for nine hundred and fifty dollars was held by plaintiff. If the Breedloves were engaged in a partnership enterprise and the notice and order were intended to relate to the business of their joint engagement, then the fact that but one of the copartners had signed would not affect the right of the plaintiff to recover where the intention appeared to bind the copartnership. This intention would be established by proof of the fact that the parties were dealing on both sides with a partnership matter. While there was positive evidence on the part of the Breedloves that they were not copartners and that J. W. Breedlove had no authority to bind R. D. Breedlove, his father, jointly with him, there was evidence from which the jury might properly have concluded, as they did conclude, that the work which had been let to R. D. Breedlove was handled and performed by a copartnership consisting of J. W. Breedlove and R. D. Breedlove. There was testimony on the part of the witness Bayne that R. D. Breedlove said that he and his son "were taking that contract." There was testimony by Irvine wherein he said, referring to the time when his contract was first written up, "Mr. R. D. Breedlove was there and he said that I would have to have J. W. Breedlove's signature. He said it would have to have his signature on it as he was connected with the work also." He further testified as follows: "R. D. said I was to have J. W. sign, as he was connected with it." The plaintiff testified in part as follows: "In my talk with J. W. Breedlove he was in partnership in the concern. He owned as much of the company as the old gentleman did." This witness gave other testimony tending to show that John Breedlove had promised to pay the money as soon as funds were secured from property of an estate. The money referred to as being due from the estate was due on account of the Breedlove contract with the original contractor in the reclamation matter. There was other testimony supplying proof of circumstances which in their nature were corroborative of the contention of the plaintiff that there was a copartnership between the defendants Breedlove. This was the principal issue submitted to the jury and there seems to have been sufficient evidence to sustain the finding against appellants.

Any error committed by the court in permitting the witness Bayne to testify that certain store accounts were kept in the joint names of appellants, was cured by the subsequent testimony of the same witness where he retracted that statement and admitted his mistake. A matter of discretion was involved where the court refused on cross-examination of the same witness to allow opposing counsel to inquire as to how many drinks the witness had had on the day referred to in the testimony. The witness had already stated that he was not intoxicated at the time, and the question asked might properly have been considered by the trial judge as being beyond the limits of a reasonable cross-examination. There was no error in admitting in evidence the contract under which plaintiff's assignor performed work. The ground assigned is that the signature of R. D. Breedlove thereto had not been identified. It was admitted in all of the testimony that the particular contract referred to was the one under which the work was done, and R. D. Breedlove at no time contended that this contract did not express that agreement correctly, or that the contract was not so made. The admission in evidence of the first letter written by J. W. Breedlove to Irvine was not error. This letter referred to money which J. W. Breedlove evidently understood Irvine was expecting to be paid to him and con stituted an admission against interest. The second letter in

troduced seems to have been immaterial, but its contents do not disclose any matter which could have prejudiced appellants as to any of their rights. There was no error in denying the motion to strike out the testimony of the witness Bayne given upon cross-examination. The matters complained of were in the main brought out by appellants' counsel, or were matters to which the same counsel had failed to object at the time of their presentation. Several other alleged errors are complained of arising upon the admission of testimony, but none of these require or deserve more particular attention. In the instructions the jury was sufficiently told that it must find that a partnership existed between the Breedloves before it could return a verdict in favor of the plaintiff, and was also told that it could return the verdict only if it found that at the time of and after the receipt by J. W. Breedlove of notice from plaintiff that he held the order of Irvine for the money, there was or became due to plaintiff money, and that the verdict could be only for such money as was at that time,

or subsequently, became due. By the last instruction the jury was required to pass upon the question as to whether in fact there was money due to Irvine, and consequently to plaintiff, which could be made subject to the order issued against it.

There was sufficient evidence to sustain the verdict and judgment and no prejudicial error is shown to have been committed warranting a reversal of the order in this case. The judgment is affirmed.

Conrey, P. J., and Shaw, J., concurred.

[Civ. No. 1592. Second Appellate District.-May 20, 1915.] C. W. HARRISON, Appellant, v. ROBERT TURNER et al., Copartners, Respondents.

CONTRACTS PROMISSORY NOTE-NON-NEGOTIABILITY-FAILURE OF PERFORMANCE-DEFENSE.-In this action to recover upon a contract in the form of a promissory note it is held that the note was an inseparable part of an agreement between the parties which constituted it a non-negotiable instrument, and that the findings of the trial court in favor of the defendants on their plea of failure of performance on the part of plaintiff were sustained by the evidence.

APPEAL from a judgment of the Superior Court of San Bernardino County. Benjamin F. Bledsoe, Judge.

The facts are stated in the opinion of the court.

H. H. Chase, for Appellant.

Curtis & McNabb, and Walter J. Hartzell, for Respondents.

JAMES, J.-This action was brought to recover on a contract which, as set out in the complaint, was in form a promissory note. It was alleged in the answer that the contract pleaded by the plaintiff set forth only a part of the terms of an agreement made between a concern called the Retailers' Supply Company and the defendants, the whole contract being attached as an exhibit to the answer. The defendants pleaded that there had been a failure on the part of the

other parties to the contract to perform according to the terms thereof. The judgment was in favor of the defendants and the plaintiff appealed.

The appellant is the indorsee of the Retailers' Supply Company, and he urges as against the finding of the trial court that the note sued upon was negotiable in form and that no alleged equities possessed by the defendants as against their co-contractor can be urged in defense of his suit. An inspection of the entire contract executed between the parties shows to us without any question whatsoever that the alleged promissory note was an inseparable part of the entire agreement made between the parties. Read in connection with other necessary parts of the contract, the alleged note at once becomes stamped with all of the marks of a non-negotiable instrument. (Civ. Code, secs. 3087, 3088.) The contract made between the parties contemplated the carrying out of an advertising scheme, by means of a voting contest which was to have been conducted through the merchandising store of the defendants at Victorville, California. The Retailers' Supply Company was to furnish a piano and certain jewelry, posters, hand-bills, etc., and, as indicated by portions of the lengthy and involved contract, were to personally supervise the carrying on of a voting contest. One of the defendants testified that the piano agreed to be supplied, together with certain jewelry, had been received by himself and copartner, but that the jewelry had never been opened and that the piano remained in storage. He testified that the voting contest had never been held for the reason that the Retailers' Supply Company had refused to personally supervise it, and in a portion of his testimony occur these statements: "The contest referred to in this order or agreement has never been held for the reason that they agreed to personally supervise it, and they never came back and never showed up. They have never done anything at all toward it. I notified them requesting them to do so, and I notified them that I held these goods subject to their order." Under this evidence, construed in the light of the obligations assumed by the cocontractors or defendants, it is a very plain matter to resolve the decision here in favor of the judgment as entered by the trial court. It cannot be claimed that the Retailers' Supply Company could on their part enforce a contract containing mutually dependent conditions without performing the obligation by it

assumed thereunder. The findings of the trial judge are responsive to this issue. The question as to whether an actual rescission of the contract had been worked is not material, although from the testimony of defendant J. C. Turner it would appear that he had given a notice substantially announcing to the supply company that the contract would be treated as rescinded, when he testified: "I notified them that I held these goods subject to their order." The judgment as entered finds ample support in the evidence, and it is not claimed that any errors of law occurred at the trial by reason of any rulings of the judge which should be here considered. The judgment is affirmed.

Conrey, P. J., and Shaw, J., concurred.

[Civ. No. 1546. Second Appellate District.-May 21, 1915.] B. H. JOHNSON, Administrator of the Estate of Robert Henry Spencer, Deceased, Appellant, v. SOUTHERN CALIFORNIA EDISON COMPANY (a Corporation), Respondent.

NEGLIGENCE-ACTION FOR DAMAGES-PERSONAL INJURIES-NONSUIT.— In this action for damages for the death of an electrician alleged to have been caused by the negligence of the defendant while the former was working as its employee in a distributing or transforming station of the defendant, it is held that a nonsuit was properly granted on the ground of the insufficiency of the evidence to warrant submitting the case to the jury.

ID. NONSUIT-SUFFICIENCY OF GROUNDS.-Where it would have served no useful purpose to have made a more particular statement as to the sufficiency of the evidence to sustain the allegations of the complaint, a motion for nonsuit "on the ground and for the reason plaintiff had not produced sufficient evidence to warrant the court in submitting the same to the jury," was sufficient.

APPEAL from a judgment of the Superior Court of Los Angeles County. J. D. Murphey, Judge presiding.

The facts are stated in the opinion of the court.