equally in the business until his part of the profits was sufficient to pay to Farwell the entire sum of money advanced by him for the real estate and for the business in the purchase of cars, and then the real estate was to be conveyed to him and the Ford agency assigned to him; that about April 1, 1916, Farwell forcibly ousted him from the business, and threatened to do him personal violence if he attempted to enter the place of business again, and this, notwithstanding the partnership had made large profits on the sale of cars and accessories, etc., which amounted to about $10,000, one half of which he claims was his, and all of which Farwell had appropriated to his own use, and, if the same had been applied as contemplated, the money due by him to Farwell would have been repaid, and the real estate should have been conveyed to him, and the Ford agency transferred to him; and that when Farwell forced him out of the partnership he was thereby damaged to the extent of his profits.

Farwell asserts that Wilcox was to furnish certain sums of money to be used in this enterprise by a certain time, and that he was not to have that interest unless he paid the money, and that Wilcox failed to procure the money, although the time was extended for him frequently, and, when he ascertained that Wilcox could not make the payment, he forfeited his right to participate in the business.

These theories were submitted to the jury under proper instructions, and a verdict was returned for the defendant in error, and the plaintiff in error has appealed here and urges several reasons why the judgment of the lower court should be reversed:

(1) That, before one partner may sue another on a cause of action arising from partnership transactions, there must be an accounting and dissolution, and the partnership affairs must be settled so it may be ascertained if any sum be due to the partners after its debts are paid.

(2) That the transactions involved here were oral, and within the Statute of Frauds.

(3) That instruction No. 5 was wrong.

The Supreme Court of the United States, in Karrick v. Hannaman, 168 U. S. 328, 42 L. ed. 484, 18 Sup. Ct. Rep. 135, said: "A partner who assumes to dissolve the partnership, before the end of the term agreed on in the partnership articles, is liable, in an action at law Partnershipagainst him by his forcible discopartner for the solution-right breach of the agreement, to respond in damages for the value of the profits which the plaintiff would otherwise have received."

of action.

And in Bagley v. Smith, 10 N. Y. 489, 61 Am. Dec. 756, the court held: "One partner may maintain an action at law against another for a breach of the copartnership articles in dissolving before the period therein limited."

And in Taylor v. Bradley, 39 N. Y. 129, 100 Am. Dec. 415; Masterton v. Brooklyn, 7 Hill, 61, 42 Am. Dec. 38; Savery v. Ingersoll, 46 Hun, 179, and Wakeman v. Wheeler & W. Mfg. Co. 101 N. Y. 205, 54 Am. Rep. 676, 4 N. E. 264, the rule is announced that the damages in such cases are the profits which Damages

would have accrued dissolution of to the plaintiff from partnership. a continuation of the partnership business, and which are lost by the unauthorized dissolution.

And in 20 R. C. L. 928, it is said: "As has already been seen, when a partner breaks the covenants of a partnership and thereby wrongfully causes its dissolution, the other may maintain an action of assumpsit against him for the damages resulting. Most authorities agree that the damages recoverable by one partner for his copartner's wrongful acts in dissolving the copartnership include anticipated profits for the residue of the term fixed by the articles, and that a partner wrongfully excluded from the business is entitled to his share of the profits on the completion of the venture."

And in 30 Cyc. 466, it is said: "In this country it (meaning an action) will lie also for the wrongful ouster of a party from the firm, or for the wrongful dissolution of the firm before the expiration of the agreed term of its existence."

Newsom v. Pitman, 98 Ala. 526, 12 So. 412; Hunter v. Land, 81 Pa. 296; Dunham v. Gillis, 8 Mass. 462; Ross v. Henderson, 77 N. C. 170; McCollum v. Carlucci, 206 Pa. 312, 98 Am. St. Rep. 780, 55 Atl. 979; Karrick v. Hannaman, supra-support the text quoted.

And in Webster v. Beau, 51 L.R.A. (N.S.) 84, note, it is stated:

"In most of the cases upon breach of a partnership contract, the breach is the exclusion of the wronged partner from the business, or the refusal to go with him in business. The measure of his damages in such case is his loss by the breach, which, apart from the question of misappropriation of contributed property, etc., is the amount of profits which he would have made, had the contract been carried out according to its terms.

"The question of the recovery of profits by a wronged partner may be divided into the recovery of actual profits or estimated prospective profits. Where the term has expired before the suit or before the trial,

and the business from which the plaintiff has been excluded has made profits, these may afford a definite basis of his loss."

Under the authority of this court in Powell v. Adler, Okla.

In J. I. Case Threshing Mach. Co. v. Walton Trust Co. 39 Okla. 748, 136 Pac. 769, this court said:

"Resulting trusts are those which arise where the legal estate in property is disposed of, conveyed, or transferred, but the intent appears or is inferred from the terms of the disposition, or from accompanying facts and circumstances, that the beneficial interest is not to go to or be enjoyed with the legal title. In such a case, a trust is implied or results in favor of the person for whom the equitable interest is assumed to have been intended, and whom equity deems to be the real

owner.

"Resulting trusts are not within the Statute of Frauds, and may therefore be established by parol evidence, where not otherwise incompetent."

See also Boyd v. Winte, Okla. -, 164 Pac. 781; Hayden v. Dannenberg, 42 Okla. 776, 143 Pac. 859, Ann. Cas. 1916D, 1191; McCoy v. McCoy, 30 Okla. 379, 121 Pac. 176, Ann. Cas. 1913C, 146. And Flesner v. Cooper, 39 Okla. 133, 134 Pac. 379, and Turner v. Turner, 34 Okla. 284, 125 Pac. 730, support the rule announced in Walton Trust Co. Case, supra.

There was no error prejudicial to plaintiff in error in the giving of instruction No. 5.

This judgment is not against the partnership, so the rights of creditors, if any, are not involved.

The judgment of the lower court is affirmed.

Per Curiam:
Adopted in whole.

The scope of this annotation is limited to cases involving the right to bring an action at law for damages for a wrongful dissolution of partnership,

and does not include decisions as to the right to maintain such an action for breach of an executory agreement to enter into partnership, or for a

breach of a covenant in the partnership agreement not amounting to a virtual abrogation of such agreement, nor cases in which the action was not for damages for wrongful dissolution, but for the conversion of the interest of the excluded partner in the firm property.

The decisions upon the question concur with the reported case (FARWELL V. WILCOX, ante, 156), in holding that an action for damages may be maintained by one partner against a copartner, or copartners, in a court of law, for a wrongful dissolution of the firm.

United States.-Karrick v. Hannaman (1897) 168 U. S. 328, 42 L. ed. 484, 18 Sup. Ct. Rep. 135; Zimmerman v. Harding (1913) 227 U. S. 489, 57 L. ed. 608, 33 Sup. Ct. Rep. 387; Kebart v. Aikin (1916) 146 C. C. A. 448, 232 Fed. 454.

Alabama. Newsom V. Pitman (1892) 98 Ala. 526, 12 So. 412.

Maryland.-Wadsworth v. Manning (1853) 4 Md. 59.

Massachusetts.-Dunham v. Gillis (1812) 8 Mass. 462.

Mississippi. Terry v. Carter (1852) 25 Miss. 168.

New York.-Bagley v. Smith (1853) 10 N. Y. 489, 61 Am. Dec. 756; Hagenaers v. Herbst (1898) 30 App. Div. 546, 52 N. Y. Supp. 360, affirmed on opinion below in (1900) 164 N. Y. 603, 58 N. E. 1088; Westwood v. Cole (1910) 66 Misc. 53, 120 N. Y. Supp. 884, reversed in (1910) 139 App. Div. 841, 124 N. Y. Supp. 97.

Pennsylvania.-Addams v. Tutton (1861) 39 Pa. 447; Hunter v. Land (1875) 81* Pa. 296; Reiter v. Morton (1880) 96 Pa. 229; McCollum v. Carlucci (1903) 206 Pa. 312, 98 Am. St. Rep. 780, 55 Atl. 979.

And compare Child v. Swain (1879) 69 Ind. 230, an action for damages against a partner who had absconded from the locality in which the firm's business was carried on, thereby de

priving the firm of the benefit of his services.

In Jewett v. Brooks (1883) 134 Mass. 505, it was said by Holmes, J., that the rule that no action at law can be maintained by one partner against another, before a winding up. applies only when the subject-matter of the claim turns out to be an item in a current account, because the plaintiff's right is not to receive the amount of that item, but only the balance of the account when taken; but that when the cause of action is a complete repudiation of the contract on which the relation between the parties is founded, no such reason exists.

The statement that a court of law is the appropriate forum is, however, probably true only in cases where the recovery sought is for the loss of prospective profits; where the action is one for profits actually earned by the continuance of the partnership business, the necessity of an accounting will render equity the proper tribunal.

Thus, a court of law will not undertake to entertain such an action, where it will be necessary for the jury to take a strict accounting, covering a long period and many transactions, as where the plaintiff measures his damages by the exact profits actually made after the wrongful dissolution. Price v. Middleton (1906) 75 S. C. 105, 55 S. E. 156.

The bringing of an action at law by one partner against the other, to recover damages for the latter's breach of the partnership contract by a declaration of dissolution, followed by a complete exclusion of the former from all possession or control of the joint property, is not such an election as will bar the former's right to sue in equity to obtain a decree of dissolution and an accounting of the partnership affairs. Zimmerman v. Harding (1913) 227 U. S. 489, 57 L. ed. 608, 33 Sup. Ct. Rep. 387. E. S. O.

There was a verdict and judgment in favor of Sully for $30,000.

The record is quite extensive, but we think the salient points may be stated as follows: The National Cotton Improvement Company, with a capital of $1,500,000, owned all the rights in American patents for a cotton gin invented by Willard D. Doremus. These rights formed the chief, if not the sole, assets of the corporation. The stock of the company, except a few shares, was held by John P. Miller in trust for himself, Doremus, and Addison G. DuBois. On December 28, 1909, Miller, as party of the first part, and Hammond and Sully, acting for a syndicate composed of themselves and others, as parties of the second part, entered into a contract wherein it was recited that Miller owned a certain amount of the capital stock of the National Cotton Improvement Company; that the parties of the second part were about to form a corporation to be known as the General Cotton Securities Company, or such other name as they might select, for the purpose of holding the "securities of corporations engaged in the ginning, warehousing, and general development of the cotton business," with a capital stock of $7,000,000 common, and $3,000,000 preferred, stock.

By this contract Miller was to deliver to the parties of the second part $471,200 of the preferred, and $967,200 of the common, stock of the first-named corporation, and to accept therefor $37,500 in cash, $1,000,000 in common, and $1,000,000 in preferred, stock of the new corporation; the parties of the second part might transfer the stock received by them from Miller to the new corporation for $3,000,000 at par of its common, and $3,000,000 at par of its preferred, stock; Miller was to deliver to the parties of the second part the $1,000,000 of preferred stock received by him from the new corporation, to be sold by them so as to net to him the sum of $400,000; and the parties of the second part were to "use their best

4 A.L.R.-11.

endeavors to sell $2,000,000" of the new corporation's preferred stock, and so much as might be necessary of the common stock thereof, as would "net to its treasury the sum of $1,600,000." It was also provided that the parties of the second part "shall be under no personal liability by virtue of" the agreement with respect to the sale of the $1,000,000 of preferred stock for the use of Miller, and the $2,000,000 for the use of the new corporation, except to account for the proceeds of the sales. On December 29, Hammond's check for $37,500 was delivered to Miller's attorney.

Soon thereafter the new corporation was formed under the name of the General Cotton Securities Company. For brevity we shall refer to it herein as the Securities Company.

Sully assuming to act for himself, Hammond and the other members of the syndicate at once made the Securities Company a proposition that, in consideration of the delivery to him of the $6,000,000 of stock mentioned in the agreement of December 28, he would "pay it upon demand $1,600,000, without interest, at such times and in such amounts" as it might require. Immediately thereafter (January 7) a contract was made between Sully and the Securities Company, embodying his proposition and the company's acceptance thereof.

On January 12, Sully, as party of the first part, and Hammond and others, as parties of the second part, made an agreement in which Sully was appointed manager of the syndicate, for the purpose of signing agreements for the sale of the stock of the Securities Company and of paying out moneys received from such sales. This agreement also fixed the price at which the stock should be sold. Prior to this, on January 7, a contract had been made between Sully and his associates with respect to the division of the profits to be realized from the transactions of the syndicate. They were to be divided into three parts, of