where a number of persons have organized and acted as a corporation; have conducted their affairs to some extent, at least, by the methods and through the officers usually em ployed by corporations; and have assumed the appearance, at least, of the counterfeit presentment of a legal corporate body." In the case here no claim is made that the proceedings were not taken in good faith; no objection was made to the evidence showing what the corporation had done in pursuance of the purposes of its organization, except that the proof of publication of notice was insufficient. The answer denied that the district "was or is duly or at all, organized as a reclamation district; deny that it constitutes a public corporation, or public agency, under, pursuant to, or in accordance with, the statutes of California, or any state; or under the by-laws adopted by said reclamation district, or at all." No objection having been made to evidence tending to prove a de facto corporation upon the ground that it was not within. the issues, we may consider it under the averments and denials. It is not necessary that some particular period of time should elapse in order to show a de facto existence. Such existence depends rather upon what has been done under and by virtue of the organization than upon the length of time which may elapse after its inception. The definition of a de facto corporation, given in Martin v. Deetz, 102 Cal. 55, [41 Am. St. Rep. 151, 36 Pac. 368], would seem to have been met in the present case. We have then the question: "Can the validity of a de facto reclamation district be attacked collaterally? In answering this question the fact that the petition was not published as required by law seems to me to be a negligible quantity. That infirmity goes to the de jure organization and does not preclude the idea of an existence de facto. De facto organizations are upheld upon grounds distinct from those upon which a de jure organization rests. It was held in Martin v. Deetz, 102 Cal. 55, [41 Am. St. Rep. 151, 36 Pac. 368], that where it appeared that the corporation has no de facto existence, its right to exist may be attacked collaterally in a private action. But where de facto existence is shown, we understand the rule as enunciated in that case to be otherwise, and its right to exist can be determined only upon quo warranto proceedings. It has been so held in several cases as to private corporations under

section 358 of the Civil Code.

(Martin v. Deetz, 102 Cal. 55, [41 Am. St. Rep. 151, 36 Pac. 368]; Lakeside Ditch Co. v. Crane, 80 Cal. 181, [22 Pac. 76]; First Baptist Church v. Branham, 90 Cal. 22, [27 Pac. 60]; People v. Dole, 122 Cal. 486, [68 Am. St. Rep. 50, 55 Pac. 581].) In People v. La Rue, 67 Cal. 526, 530, [8 Pac. 84, 87], which was the case of a swamp land district, the court said: "A corporation de facto may legally do and perform every act and thing which the same entity could do or perform were it a de jure corporation. As to all the world except the paramount authority under which it acts and from which it receives its charter, it occupies the same position as though in all respects valid, and even as against the state, except in direct proceedings to arrest its usurpation of power, it is submitted its acts are to be treated as efficacious." Quint v. Hoffman, 103 Cal. 506, [37 Pac. 514, 777], was an action to enjoin the sale of lands for assessments levied under an irrigation district organization. Said the court: "An irrigation district of this character is a public corporation, formed under a general law, and its object is the promotion of the general welfare. (People v. Selma Irr. Dist., 98 Cal. 206, [32 Pac. 1047], and cases there cited.) Corporations organized under the act of the legislature, properly known as the Wright act, being public corporations, it is immaterial whether they be corporations de jure or de facto. That is a matter which cannot be inquired into upon collateral attack; and in a case like the present, where the validity of an assessment levied by such a corporation is the subject of litigation, the validity of such assessment does in no way rest upon the fact of the de jure character of the corporation. This principle must be considered settled law in this state. (Dean v. Davis, 51 Cal. 411; Reclamation Dist, v. Gray, 95 Cal. 601, [30 Pac. 779]; Swamp Land Dist. No. 150 v. Silver, 98 Cal. 53, [32 Pac. 866]." See People v. Linda Vista Irr. Dist., 128 Cal. 477, 484, [61 Pac. 86].) The principle laid down in Quint v. Hoffman, 103 Cal. 506, [37 Pac. 514, 777], and Reclamation Dist. v. Turner, 104 Cal. 335, [37 Pac. 1038], was approved in Keech v. Joplin, 157 Cal. 1, [106 Pac. 222]. Said the court: "The evidence abundantly shows that the district has been organized, and that it has been acting as a district. In other words, that is a de facto district. It is a public corporation of a

similar character to irrigation districts and reclamation districts. The law is well settled that the validity of the organization of such a district cannot be questioned by private individuals, but only in a proceeding in quo warranto at the suit of the state."

At the former hearing the stress of the argument was placed upon the question whether a de jure district had been created, and our decision rested mainly upon the right of defendant to call in question its validity where it clearly appeared, upon plaintiff's own showing, that the supervisors were without jurisdiction. It was assumed that plaintiff had not shown de facto existence. Inasmuch, however, as this fact now appears to us to have been established, we think that the decisions of our supreme court compel a conclusion favorable to plaintiff's contention.

The judgment is affirmed.

Hart, J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 8, 1910.

Beatty, C. J., Angellotti, J., and Sloss, J., dissented from the order denying a rehearing in the supreme court.

[Civ. No. 709. Third Appellate District.-May 12, 1910.] A. SWANSON, Appellant, v. JOHN WILSEN, ANDREW FOER, CHRIS NILSON, NELS NEWMAN, and C. HAINER, Partners Under the Firm Name of JOHN WILSEN & CO., Respondents.

INJUNCTION-DISPUTED

COURT-CONTRACT

DEMAND PAYMENT INTO BETWEEN PARTNERS-MERE MONEY ALLOWANCE-JURISDICTION OF APPEAL.-Where the action was brought to enjoin a construction company from paying a residue to partners defendants, who had completed a contract to prepare a section for a railroad, and the equitable element was eliminated by the payment of the money into court, and the plaintiff is an assignee of a partner who had re

fused to complete the contract, and had quit work, and the case did not involve a settlement of the partnership business, but a mere money demand by such assignee, as to the amount due his assignor for work done, under a contract between the partners, and the only judgment rendered for plaintiff was for the value of the work and labor done by his assignor, this court has jurisdiction of an appeal therefrom.

ID.-AGREEMENT OF PARTNERS AS TO WAGES FOR QUITTERS-SUPPort of FINDING. Where the evidence showed an original agreement of seven partners to complete the section and share the profits equally, but also showed that afterward, when one of the partners quit the work and refused to do more, they settled with him on a basis of wages at three dollars per day, less expenses advanced, and it was then agreed between all of the remaining partners, including plaintiff's assignor, that if any other one should quit the work before it was done he should receive the same per diem, less expenses, the court properly found, upon sufficient evidence, that the recovery of the plaintiff, as assignee of a quitter of the work before it was done, was limited to the same per diem, less such expenses. ID.-AGREEMENT NOT REQUIRED TO BE IN WRITING EVIDENCE.-The understanding between the partners as to how quitters should be paid was not required to be in writing, and could be determined upon at any time. Evidence as to how the first quitter was settled with was admissible as tending to corroborate the agreement then made between all the remaining partners that the rule adopted in his case was to govern if others should quit the work. ID.-AGREEMENT AS TO QUITTERS NOT INEQUITABLE-PROPER SHARERS IN PROFITS.-The agreement as to quitters found by the court was not unreasonable or inequitable. On the contrary, it was but just that the five partners who stood by the contract to construct the section to its completion, and took the risks of loss in the business, should alone share in whatever profits might result from their fidelity to their obligations.

ID.-CODE SECTION INAPPLICABLE.-Section 2403 of the Civil Code, providing that, “In the absence of any agreement on the subject, the shares of partners in the profit and loss of the business are equal," is only intended to reach cases in the absence of any agreement between the partners relating to the shares of partners, and does not apply to an equitable agreement between the partners as to the share of quitters in a work undertaken by the partnership. ID.-APPEAL-REVIEW OF EVIDENCE-CONFLICT.-Where the evidence is conflicting, the findings of the trial court will not be disturbed upon appeal.

APPEAL from a judgment of the Superior Court of Butte County, and from an order denying a new trial. John C. Gray, Judge.

The facts are stated in the opinion of the court.

H. D. Gregory, for Appellant.

George Foster Jones, for Respondents.

CHIPMAN, P. J.-The Utah Construction Company was made a party defendant and was sought to be enjoined from paying over certain money to the other defendants. The company paid the money into court and was no longer interested in the suit, and as to it the action was treated as dismissed. The equitable element of the case being thus eliminated, the remaining issues were within the jurisdiction of this court to which the appeal was taken. The amount of money involved and the definite amount thereof to which plaintiff laid claim appear in the complaint, and these amounts are not denied to be correct, the issue presented by the answer being, that plaintiff is entitled only to a certain part, to wit, $275.15, of the sum claimed by plaintiff. Had the case involved an accounting among the copartners and the settlement of the copartnership business, thus requiring the aid of the equitable powers of the court, we would have been without jurisdiction upon direct appeal. (Const., art. VI, sec. 4.)

Plaintiff's action is to recover the sum of $1,441.44, as assignee of one John Olsen, as the latter's share of the earnings of an alleged copartnership consisting of defendants, the said Olsen and one Antone Carlson-seven in all. These seven men entered into a written agreement describing themselves therein as "a partnership doing business under the firm name of John Wilsen & Co., the party of the first part," with the Utah Construction Company, party of the second part, bearing date December 1, 1907. By this agreement theyfirst parties agreed to do "all the clearing, grubbing, grading, tunneling, masonry, culverts, ditches, creek channels and such other work connected therewith and rendered necessary thereby as may be required by the engineer in charge of the work," between certain indicated points, "on the line of the said Western Pacific Railroad in the county of Plumas"; the work was to "be commenced at once and shall be entirely completed so as not to delay track laying," and "within the time herein specified." The specifications of the work were at