tions raised, but find no error in the record. The judgment of the district court is therefore affirmed. All concur.
Wallin, J., having been of counsel, did not sit; Rose, J., of the fifth judicial district, sitting by request.
Thomas J. Devore, Plaintiff and Respondent, v. Thomas S. Woodruff, Defendant and Appellant.
1. Deed—Agreement to Reconvey—Effect of Dependent on Intention.
A separate agreement was executed between grantor and grantee in a deed, by which latter agreed to reconvey to former on payment of a specified sum. Held, that such separate agreement did not show conclusively that such deed was executed to secure a debt, but that the question whether the transaction was a sale with an optional right of purchase, or a mortgage, was one of fact resting upon the intention of the parties, to be determined from all the evidence in the case.
2. Partners; Action at Law Between.
An action at law will not lie in favor of one partner, against his co-partner, to recover the profits made by the latter on sale of property formerly belonging to the firm, but procured to be transferred by defendant from the firm to himself, through a third person, and afterwards by him sold at an advance; no settlement of the partnership accounts and transactions having been had.
(Opinion Filed May 6, 1890.)
APPEAL from district court, Cass county; Hon. William B. McConnell, Judge.
Messrs. Greene & Hildreth, for appellant, argued: That as to all transactions involved in this action the parties were partners; that the plaintiff had never demanded an accounting or dissolution, therefore this action at law for damages cannot be maintained; citing, Haskell v. Adams, 7 Pick. 59; Williams v. Henshaw, 12 id. 378; Carey v. Bruth, 2 Caines, 293; Bates on Partnership, vol. 2, § 849; Nugent v. Locke, 4 Cal. 320.
That as to the land near Fargo, there was no proof of indebtedness from defendant to plaintiff; if there was such indebtedness, it was extinguished by the deed from defendant to plaintiff; citing, Hayes v. Carr, 83 Ind. 275; Conroy’s Executors v. Alexander, 7 Cranch, 218; Flagg v. Mann, 14 Pick. 467; Jones
