something which he must have known from the start, that if he was to have anything that he should make a claim. As I understand the statement of counselI am not making any statement on behalf of the court whatever, I am not making any statement on behalf of the court as I understand the position of counsel it is this: That it is their contention now that the partners are not-that the property of George N. Fletcher & Sons belongs to the three heirs of George N. Fletcher in equal thirds.

"Mr. Spalding: No, your Honor. I was unfortunate in expressing myself. My contention is not that the property of George N. Fletcher & Sons belongs to the three heirs in equal shares, but that they belong one-third to Frank W., one-third to Allan, and onethird to the estate of George N. Fletcher.

"The Court: In other words, Grace would own oneninth and each of the brothers four-ninths; that is their claim that they are entitled to certain aliquot portions of his property; but if that shall be found against him, then you claim they shall be compensated for their services for all the years in which this property has been managed by them, and they may not have intended to charge anything along years back, at all. I think Mr. Fletcher understands the situation and can answer the question shorter than we can talk about it.

"Q. When did you first decide to ask your brother and sister to pay for the services you had rendered? "A. I had supposed from 1890-thirty years ago that I had been handling George N. Fletcher & Sons as a partner and in consequence of my part of the partnership was to give my services. I have just found by the Supreme Court decision that I am not. Therefore, as my counsel says, the question is open as to what my services shall be. And there has been no consideration prior to the decision of the Supreme Court to render to have any salary from George N. Fletcher & Sons.

"Q. In other words, until the Supreme Court decided this case, you had no intention of charging your brother and sister for any services you had rendered? "A. To George N. Fletcher & Sons. "Q. Or anybody else?

"A. To George N. Fletcher & Sons.

"Q. Had you ever expected at any time before this decision to charge Grace Fletcher King for any service you had rendered for any interest which she had in them?

"A. Yes, I have had the question in abeyance a good while, whether I should ask compensation for services as administrator or not."

Notwithstanding what was said by the learned circuit judge during the proceedings in the circuit court, in chancery, on the 9th day of August, 1918, he filed an opinion on the settlement of the final decree, in the course of which he said:

"It is the present position of plaintiff that, while the actions and doings of the several persons connected with the concern known as George N. Fletcher & Sons were each correctly stated in his bill of complaint herein, it was a mistake and a misnomer to call the same a copartnership, and that the decree above recited, only decides that there was no general copartnership and leaves the legal status of such persons and property, otherwise than as partners, wholly undetermined; that the business carried on for several years under the name of George N. Fletcher & Sons was a joint adventure in which each of the partners named had a one-third interest, and that the property accumulated should be distributed in that proportion. The most tangible reason given by the court for its determination that there was no copartnership, or copartnership property is this:

"George N. Fletcher at all times intended his daughter Grace to share his estate equally with his sons. Hence, he would not form a copartnership with them and transfer to it his property, so that the effect would his estate'; and neither would he give $500,000 to the business of George N. Fletcher & Sons if he had not thought that his daughter was interested in that business and would not be deprived of her share by the transfer so made by him.' It is of the very spirit of

N. Fletcher & Sons was not owned by anyone to the

exclusion of Grace as an equal heir to all the property of her father.

"And, if he would not so transfer his property to a copartnership for the reasons stated, surely he would not to a joint adventure if the result would be precisely the same as to the interest of Grace in this property. True it is, that the reason given by the Supreme Court for its determination is not what was adjudicated. That is limited to the very decree. But, where a decree that there was no copartnership rests so fundamentally upon the asserted intention of George N. Fletcher that his daughter should share equally in his estate, I would not deem it becoming for this court practically to reverse such holding by finding the business of George N. Fletcher & Sons to have been a joint adventure upon the same proofs.

"But the proofs now taken are not the same as those before the Supreme Court, and are quite sufficient to show, and I think do show, that to the perfect knowledge of George N. Fletcher and his sons, the business of Fletcher & Sons was a joint adventure, in which he and his two sons had each an equal one-third interest as the presumption would be in law, and as he said."

Notwithstanding all that had been said by the learned circuit judge, a decree was entered which, aside from the preambles and recitals, is, word for word, the decree of April 4, 1916, which this court said was a wrong decree. It would be difficult to find a precedent for such a remarkable result, under such circumstances. To sustain such a remarkable result it must be claimed that the circuit court for the county of Alpena, in chancery, had the right to permit the amendments proposed by counsel for Frank W. Fletcher, and to reopen the case for any testimony which he might choose to offer, notwithstanding the denial of this court of the petition for an order to remand the record to take further testimony, and for leave to file a bill of review. And after denying the motion for a rehearing. It is inconceivable that this was a proper practice, or that the course pursued was a proper one. The case was sent down to the circuit court, in chan

cery, for the purpose of an accounting upon the basis of the finding and decree of this court.

"without prejudice to the rights of the parties hereto to have determined any claims they may have, other than the existence of the general copartnership as alleged in the bill of complaint."

We think such course was unjustifiable and that this court should not look into, or pass upon such new evidence introduced under such circumstances. It may be said, however, in passing, that the new evidence, if it has any probative force whatever, tends to show a general copartnership in which there was a community of property, a community of interest, and a community of profits, in a general business carried on for years; and not a joint adventure, which may be defined as an association of two or more persons to carry out a single business enterprise for profit. Rowley on Partnership, § 975, and numerous cases cited. See title "Joint Adventure," 15 R. C. L. p. 500, and numerous cases therein cited. In nearly all the cases cited by counsel upon the subject of joint adventure, it appears that the adventure related to a single and isolated transaction. It is true that there are some exceptions to this statement, but in the main it will be found to be true. It is true in Brotherton v. Gilchrist, 144 Mich. 274 (115 Am. St. Rep. 397), and in Bush V. Haire, supra. It was distinctly said in the lastnamed case that:

v.

"A careful study of this record forces the irresistible conclusion that such dealings as the parties had with one another were a series of independent transactions, each separate and distinct from the others, concerning which no general copartnership existed." Citing cases.

In that case there was a reversal of the decree below, and a decree entered in this court dismissing the bill of complaint with costs, but without prejudice to the

plaintiff to institute such proceedings as he deemed proper to obtain relief on the theory of a joint adventure. The course pursued in that case was simply authority for the institution of a new suit, which, as appears in Haire v. Charlevoix Circuit Judge, 201 Mich. 224, was brought later by filing another and an independent bill of complaint. That was not this case in either practice or principle. The instant case, when here before, was not disposed of on any such narrow theory as that which is advanced by the plaintiff here. There can be no question that it was the intention of this court to foreclose the question of the rights of Frank W. Fletcher and Allan M. Fletcher to the property standing in the name of George N. Fletcher & Sons. In the language of the circuit judge, above quoted,

"it is the very spirit of the opinion and decree which follows, that the capital and property of George N. Fletcher & Sons was not owned by anyone to the exclusion of Grace as an equal heir to all the property of her father."

That was the spirit of the decree in this case. The accounting had in the court below was not in pursuance of the finding and decree of this court, notwithstanding the injection into the record of some testimony tending to show the extent of the services of Frank W. Fletcher. There is no finding of the court upon that subject.

Many pages of the brief, and much of the oral argument of plaintiff's counsel were devoted to a reargument of the case as it appeared in the first record, urging that this court had reached a wrong conclusion; and it might properly be called a rehearing, although a rehearing had been denied by this court.

In the interest of proper practice and to carry out the spirit of the decision and decree of this court, the decree of the court below will be reversed. The same