urge that the minority owners prematurely After a vessel is libeled, the managing owner dinance does state its date. Nor can we, as suggested by the respondents, hold that there was a substantial compliance with the statute because, as it is claimed, the notice gave the number of the ordinance. The argument is that any one who desired to inspect the ordinance could find it as readily from a reference to its number as from one to its date. This may be so, but it does not appear to have been the view of the Legislature, which saw fit to require a statement of the date. In Haughawout v. Percival, supra, relied on by the respondents, the notice was, as we held, substantially that required by the statute, not a notice different from, although perhaps just as good as, the notice called for by the act. For us to hold that a statement of the number of an ordinance is equivalent, or substantially equivalent, to a Appeal from Superior statement of its date would be to make a Marcel E. Cerf and E. P. Shortall, Judges. Court, City and County of San Francisco; statute, rather than to interpret one. It may Action by Lina Ferem and others against be remarked, incidentally, that the record does not show that the posted notice contain-Olson & Mahony. From the judgment rendered a statement of the number of the ordi-ed, plaintiffs appeal. Reversed and remanded. nance. It need hardly be said that the defective notice is not cured by the fact that it refers to the ordinance itself for further particulars. The statute requires such reference in addition to the statement of the date. Upon the facts found, the conclusion of law should have been that the assessments complained of were void, and that their collection should be enjoined. The judgment is reversed, with directions to the court below to enter judgment upon the findings in favor of the plaintiffs, as prayed in their complaint. We concur: SHAW, J.; LAWLOR, J. 21-ADJUSTMENTS-COMPEN SATION OF ADJUSTER. An adjuster, who adjusted the insurance on the freight earnings which was in its nature a partnership asset, was properly allowed a comminority owners. pensation against both the managing and the Department 2. C. H. Sooy and F. R. Wall, both of San Francisco, for appellants. Henry A. Jacobs, of San Francisco, for respondent. HENSHAW, J. This is an action in equity by the minority owners of the American schooner Wm. F. Garms against defendant corporation, the majority owner and the managing owner, for an accounting touching their respective partnership interests in the use and operation of the vessel. It had made two voyages. Its third projected voyage was from Puget Sound to Santa Rosalia, Mexico. When a few days out from its domestic port it encountered heavy weather, was disabled, and was towed back to a Puget Sound port by the Puget Sound Tugboat Company. Shortly thereafter this last company libeled the vessel and her cargo for salvage, and by a second libel for towage. From neither of these libels was she released. Default was entered in the libel for towage, and the vessel was sold for $5,800; the money being paid over to the United States marshal. At this sale the defendant, managing owner, bought the vessel. None of the minority owners appeared in either of the cases, nor has any of them since reacquired any ownership in the Vessel thus sold. In addition to the $5,800 arising from the sale of the vessel, $3,000 was paid into court by the owners of the cargo in the libel against the vessel and its cargo for salvage. Payments were made out of this 3. SHIPPING 21-LIBELS-GENERAL AVERAGE LOSS ADJUSTMENTS-CONCLUSIVENESS. Where a vessel owned by a partnership $8,800 amounting to $4,376.48. The balance was libeled, although the managing owner had power to make a general average loss adjustment, such adjustment was not conclusive and did not debar equity from calling for completion and settlement within the court. 4. SHIPPING 21-LIBELS-GENERAL AVERAGE LOSS ADJUSTMENTS-CONCLUSIVENESS. Under Civ. Code, §§ 2152-2154, as to adjustments of average loss where the managing owner after libel of the ship failed to make a general average loss adjustment, he could not was sent to San Francisco and delivered to W. T. Cleverdon, named by respondent as adjuster; $1,700 of this balance having been paid to the cargo owners. The $3,000 paid for salvage was received by the Puget Sound Tugboat Company in full satisfaction for salving both the vessel and her cargo. The admiralty court made no determination of the amount that the cargo should pay to dis charge the lien against it for salvage, nor viving partner or of the representatives of a the amount that the vessel should pay to dis- deceased partner is so fundamental as to recharge the lien against it. There has thus quire no citation of authority. The proposibeen no determination of the amount in value tion is argued by respondent that this partof the lien against the vessel for salvage or of nership still continues, undissolved. Indeed, the amount in value of the lien against the respondent must maintain this position to upcargo. The adjuster, Mr. Cleverdon, testi- hold the judgment of the court. But from fied: the nature of the thing itself this cannot be. Such a limited partnership, going only to the employment of the vessel itself, of necessity must terminate when the vessel is lost or sold, and so all of the adjudications hold. Abbott's Merchant Ships (14th Ed.) 145; Am. "I presume the average adjuster is going to adjust the salvage and ascertain the proportion of it that the cargo will have to pay and the proportion that the vessel will have to pay. I certainly presume that I am going to do that." The $1,700 paid over to the cargo owners was not authorized by the plaintiffs or any of them. Defendant, the managing owner, employed Mr. Cleverdon to estimate the general average loss and to make due and proportionate adjustment of it. This general average loss and adjustment had not been made at the time of the sale of the vessel and has not yet been made. Many items of expense involving charges against these plaintiffs' interests in the vessel and in its use remain to be settled. On June 3, 1915, according to the defendant, the general average statement was being prepared. When this cause came on for trial in December, 1914, it had not been prepared. In the matter of voyages numbered 1 and 2 above adverted to, which voyages had been completed, the defendant charged sums for managing the business of the voyages. Without further elaboration, the foregoing, for the purposes of the consideration to be had, presents with sufficient accuracy the situation when plaintiffs brought to trial their equitable action for an accounting of all these matters. The learned judge, in his opinion, declared the indubitable proposition that the managing owner has power to adjust general averages, but further laid down the proposition that: "The co-owners are bound by the adjustment. They are bound by all of its elements, even the alleged erroneous inclusion of the claim for salvage." Further, that the minority owners must await the general average adjustment, and with further discussion as to certain items of insurance and items of the charges of the managing owner for compensation in managing the voyages, the court concluded "that there are not now in the hands of the managing owner any funds respecting which the plaintiffs are entitled to an accounting," and it gave judgment for defendant for costs. [1] The status of these parties litigant is, of course, well settled. They were cotenants in the ship. They were partners in the use of the vessel. As part owners they were tenants in common and not partners. Freeman, Cotenancy, § 379; The New Orleans, 106 U. S. 13, 1 Sup. Ct. 90, 27 L. Ed. 96. Their partnership extended only to the use of the vessel and not to its ownership. Hendy v. March, 75 Cal. 569, 17 Pac. 702; Civ. Code, § 2396. The proposition that upon the dissolution of a partnership an accounting may be & Eng. Ency. of Law (2d Ed.) pp. 880 and 881; Watson, Law of Partnership, pp. 139, 142; Mumford v. Nicoll, 20 Johns. (N. Y.) the vessel upon each voyage is regarded as a 635. For many purposes the employment of special partnership which ends on the termination of the voyage. It is not necessary to enter with elaboration upon this. it to cite Smith v. Butler, 164 Mass. 37, 41. N. E. 60, and McLauthlin v. Smith, 166 Mass. 131, 44 N. E. 125. It is immaterial to the present consideration how this partnership may be regarded, since plaintiffs are seeking no legal relief, but equitable relief growing out of all the transactions of the partnership. Suffice [2] The partnership thus unquestionably having been dissolved, the right to an accounting is established prima facie by this fact alone. 30 Cyc. 712. [3] Seemingly the learned trial judge entertained the view that as it was within the power of the managing owner to make the general average loss adjustment, and as the minority owners in this partnership would be bound by that adjustment, and as that adjustment had not in fact been made, these minority owners and partners had prematurely sought the assistance of equity. If such in truth was his position, he was in error. No such finality attaches to such general average loss adjustments, and the fact that it has not been completed by the managing owner does not debar equity from calling for its completion and settlement under its own eye, and not only the right but the duty of equity to do this precise thing became fixed upon the dissolution of the partnership by the sale of the vessel. Says Story, speaking of general average adjustments: "A court of equity having the authority to bring all of the parties before it and to refer the whole matter to a master to take an account and to adjust the whole apportionment at once, affords a safe, convenient, and expeditious remedy." 1 Eq. Jur. (13th Ed.) 491. If an adjustment be made without the aid of a court of equity, it is not conclusive. "The adjustment is not conclusive. The facts are open to inquiry." The Santa Anna (D. C.) 49 Fed. 878; The Alpin (D. C.) 23 Fed. 819; The Niagara, 21 How. 9, 16 L. Ed. 41. In The Star of Hope, 9 Wall. 203, 19 L Ed. 638, the court made the average adjustment, and on appeal the court's right and power to do this was upheld; the Supreme merely the law to be applied in making an average adjustment. See, also, Minor v. Commercial Union Ins. Co. (D. C.) 58 Fed. 801. [4] In brief, sections 2152 to 2154 of our Civil Code provide how the average loss is to be adjusted. The managing owner has the power to make or cause this adjustment to be made. If the adjustment so made be conformable to the law, it is valid. Otherwise it may be questioned. If at the time that the aid of a court of equity is sought this adjustment has been made, then equity will take up the matter upon the basis of the adjustment so made. If it has not been made then, as has been shown, it is quite within the power and province of equity to order the adjustment to be made and to subject it to equitable review. But it does not lie in the mouth of the managing owner after the termination of the partnership to urge that the minority partners have prematurely sought the aid of equity because he has delayed making such adjustment. Backus v. Coyne, 35 Mich. 5. [5] Of course, it is well settled that after the vessel was libeled the managing owner was without authority to bind these plaintiffs for subsequent costs, disbursements, and expenses. If they were properly incurred, of course, these plaintiffs must bear their proportion thereof. Otherwise the managing owner was but a volunteer. Reed v. Bachelder, 34 Me. 205; The Augustine Kobbe (D. C.) 37 Fed. 702; The Esteban de Antunano (C. C.) 31 Fed. 924; Williams v. Suffolk Ins. Co., Fed. Cas. No. 17,739; The Joseph Farwell (D. C.) 31 Fed. 844; Civ. Code, § 2155. [6] Our law denies a partner the right to compensation for services rendered by him to the partnership (Civ. Code, § 2413), and declares that "a managing owner is presumed to have no right to compensation for his own services." Civ. Code, § 2072. The trial court allowed the items of compensation to defendant for voyages 1 and 2. It very properly refused to do so upon evidence of custom to this effect, but concluded that the charge made by the managing owner for these services and presented to these plaintiffs in accounts rendered, in view of the nonaction of these plaintiffs, bound them as by an account stated. But an inspection of these accounts and of the testimony supporting them shows that they were not and were not meant to be final, but by their very terms were subject to later modification and adjustment. Moreover, the principle governing the determination as to whether or not an account has been stated is necessarily different when the controversy is between partners from what it is when the parties to it stand at arm's length. And this is very well pointed out in Hinton v. Law, 10 Mo. 701, where it is said: "No principle is better settled than that between partners no account can be taken at law. The rule has its origin in this principle that, before an action can be brought for any particu lar item, the partnership accounts must be taken, with a view to ascertain whether that item has been affected in any, and in what, degree, by the intermediate gains or losses of the partnership business." That the action or nonaction of plaintiffs in the matter of these accounts did not bind them as to an account stated is in full accord with our authorities. Ross v. Cornell, 45 Cal. 136; Fisher v. Sweet, 67 Cal. 228, 7 Pac. 657; Dukes v. Kellogg, 127 Cal. 563, 60 Pac. 44. [7] The last item allowed by the court, whose allowance is criticized by these appellants, is a payment to Adjuster Cleverdon of $405 as compensation for his services in adjusting the insurance on the freight earnings. For several reasons, however, this item was properly allowed. Mr. Cleverdon was employed for this purpose by the managing owner in the interest of all of the partners before the sale or even the libel of the vessel. The insurance fund was in its nature a partnership asset, and, even if it be said that the respondent was without authority to procure the insurance in the first instance, yet, when the fund was collected and these plaintiffs accepted their portions of it without protest, they should not in equity be heard to complain. It is finally urged by respondent that the trial court did not refuse to state the account between these parties and wind up the affairs of the partnership, but, to the contrary, that the court did in terms take and make an accounting, and declared that the defendant had accounted to each and all of the owners of the schooner for all moneys received, both as managing owner and as partner. But it is apparent, from what has been said and from the quotations from the court's decision, that after passing upon a few questioned items it in effect refused to enter upon a general accounting and settlement of the partnership affairs, upon the ground that the plaintiffs were not entitled thereto. For which reasons the judgment appealed from is reversed, and the cause remanded for such further proceedings as may be meet in equity. We concur: MELVIN, J.; LORIGAN, J. FAIRCHILD et al. v. OAKLAND & B. S. RY. CO. (S. F. 7596.) (Supreme Court of California. Dec. 7, 1917.) 1. EMINENT DOMAIN 271-STREETS-RIGHT OF ABUTTING OWNERS-STREET RAILROADSSPECIAL DAMAGES. A property owner of a corner lot where a street railway track is laid close to the curb along the line of his property is entitled to damages under Const. art. 1, § 14, granting a recovery for the damage as well as the taking of property for public use; the rule being that one suffering any special or peculiar damage apart from the general inconvenience which may have been worked to all property owners is entitled to damages. 2. EMINENT DOMAIN 293(4) ISSUES PLEADING. Where an abutting lot owner is shown to be entitled to damages from a street railway, it is immaterial, as far as the company is concerned, that plaintiffs, who really own the lot, have not shown the kind of ownership pleaded in their complaint. 3. EMINENT DOMAIN 298 STREET RAILSPECIAL DAMAGES - ELE WAY COMPANY In an action by a corner lot owner for special damages on account of a street railway track constructed close to the curb along the line of the lot, it was improper, where there was no improper construction or maintenance, to admit evidence of the jar occasioned by passing street cars, such being an inconvenience sustained in common with all others, and is not an element of damages. Department 2. Appeal from Superior Court, Alameda County; T. W. Harris, Judge. Action by Theodore Fairchild and Lilly Fairchild against the Oakland & Bay Shore Railway Company, a corporation. Judgment for plaintiffs, and defendant appeals. firmed. Corbet & Selby, of San Francisco, and Snook & Church, of Oakland, for appellant. Reed, Black, Nusbaumer & Bingaman, of Oakland, Cal., for respondents. as for the taking of property for public use. Const. Cal. § 14, art. 1. [2] The second proposition advanced by appellant is that the ownership of the lot is not established, or at least is not established as pleaded in the complaint. With this, howevIt is suffier, appellant has no real concern. ciently shown that all of the ownership in the lot is vested in the plaintiffs. The satisfaction of the judgment relieves the appellant from any possibility of future litigation over the damage so occasioned, and this is sufficient. The evidence was sufficient to sustain the award of judgment which the court actually gave-$600. It would be unprofitable to set forth that evidence in detail. [3] Mrs. Fairchild was permitted, over objection of appellant, to answer the following question: "When one of these freight trains is passing the house, what is the effect on the house itself? A. It jars it." Unquestionably the discomfort or inconvenience which a property owner sustains in common with all others in the legitimate and Af-proper exercise of a street or steam railway is not an element of damage. Eachus v. Los Angeles Ry. Co., 103 Cal. 617, 37 Pac. 750, 42 Am. St. Rep. 149. Under certain circumstances, as tending to show an improper construction and maintenance, this question and answer might be permissible. Upon the other hand, if it went only to a common detriment or lessening of enjoyment or comfort, not growing out of faulty or improper construction and maintenance, it would not be an element of damage. We need not stay to analyze what it was or might have been in this case for the action was heard by the court without a jury, and it will be presumed that the court gave to this evidence the weight to which it was entitled and no more. HENSHAW, J. Plaintiffs, as tenants in common of a corner lot in the city of Oakland, brought this action against defendant to recover damages occasioned to their property by the construction and maintenance of an electric street railroad, the tracks of which were laid close to the curbing along the line of their property. They recovered judgment, and defendant appeals from that judgment, and from the order of the court denying its motion for a new trial. The judgment and order appealed from are therefore affirmed. We concur: MELVIN, J.; LORIGAN, J. COLLINS v. MARSH et al. (L. A. 4082.) (Supreme Court of California. Dec. 11, 1917.) CORPORATIONS 706(8) 1. MUNICIPAL STREETS-STANDING VEHICLES. Under a municipal ordinance requiring standing vehicles to be not more than two feet distant from the curb, except in emergency, where plaintiff, driving up to the curb, had a space of only 22 feet in which to stand his ve [1] The first contention is that the proper operation of such an electric street railroad is not an additional burden or servitude upon the street so that an abutting property owner, not owning the fee of the street, is entitled to damages. Herein appellant relies upon Montgomery v. Santa Ana R. R. Co., 104 Cal. 186, 37 Pac. 786, 25 L. R. A. 654, 43 Am. St. Rep. 89. This case, however, is not in conflict with the later case of Smith V. Southern Pacific R. R. Co., 146 Cal. 164, 79 Pac. 868, 106 Am. St. Rep. 17, where such a right of action is recognized as a right behicle, owing to other standing vehicles, and inlonging to the property owner along a street so used, if he suffers any special or peculiar damage apart from the general inconvenience which may have been worked to all property owners. This is precisely one of those rights of action for the damaging of property which, if it did not exist before, came into existence 2. APPEAL AND ERROR 1050(1)—HARMLESS ERROR-EVIDENCE-INTENT OF WITNESS. by virtue of our constitutional amendment While admission of plaintiff's testimony that granting a recovery for the damage as well he intended so to move the buggy was error, it tended to alight and move the wheels of the buggy over to the curb, there was such an emergency that, in an action for injuries when his buggy was struck by defendant's automobile, it was proper to refuse instruction that he was guilty of negligence if any wheel on the curb side was more than two feet from the curb. was not ground for reversal, where the only way to get the buggy to the curb was the way he intended to use, and the emergency still existed when the accident occurred. NEGLI 3. MUNICIPAL CORPORATIONS 706(5) STREETS DRIVING AUTOMOBILES GENCE EVIDENCE. Evidence held sufficient to establish negligence of defendant in driving automobile against rear wheel of plaintiff's buggy. 4. MUNICIPAL CORPORATIONS 706(8) USE OF STREETS-LAST CLEAR CHANCE DOCTRINE. It was error in submitting the last clear chance doctrine in an action for injuries to plaintiff when his buggy was struck by defendant's automobile to predicate defendant's negligence on whether he should have known, in the exercise of ordinary care, of plaintiff's situation. 5. APPEAL AND ERROR 1064(1)-HARMLESS ERROR-INSTRUCTIONS. But such instruction was not harmful where there was no dispute as to the position of plaintiff's buggy, and defendant testified that he saw it when he was still 40 or 50 feet away. over the curb, the right front wheel of the buggy about a foot and a half from the curb, and the rear wheel about four feet out. Before he could alight, his buggy was struck by an automobile driven by the appellant. Plaintiff was thrown to the pavement, receiving the injuries of which he complains. The appellant's contention was that the collision was due to the act of plaintiff's horse in stepping back, and thus throwing the rear end of the buggy into the line of the automobile's progress. Without this backing, it was claimed, the automobile would have passed plaintiff's buggy in safety; the appellant's own testimony being that his front wheels had already passed, and that the right rear wheel of the automobile collided with the left rear wheel of the buggy. The answer, in addition to denying negligence on the part of the defendants, set up that plain 6. TRIAL 260(8)—INSTRUCTIONS-REQUESTS tiff was guilty of contributory negligence. COVERED. Requested instruction in an action for injuries when plaintiff's buggy was struck by defendant's automobile, that the jury could consider whether the street was in a secluded district or in a business district, was sufficiently covered by instruction that in passing on issue of negligence the jury must consider all the facts and circumstances. Department 1. Appeal from Superior Court, Los Angeles County; Frederick W. Houser, Judge. Action by Michael T. Collins against Robert Marsh and others. From a judgment for plaintiff and order denying new trial, L. J. Marsh appeals. Affirmed. O'Melveny, Stevens & Milliken, Walter K. Tuller, and Alex Macdonald, all of Los Angeles, for appellant. J. W. Carrigan and Zenus F. Barnum, both of Los Angeles, for respondent. SLOSS, J. In this action, brought against several defendants to recover damages for personal injuries, the jury returned a verdict in favor of the plaintiff against L. J. Marsh alone for $5,000. L. J. Marsh appeals from the ensuing judgment, and from an order denying his motion for a new trial. The accident occurred on Hill street in the city of Los Angeles. Plaintiff, who was driving a horse attached to a buggy, had turned into Hill street from Seventh street, and was driving northerly on the easterly or righthand side of Hill street toward Sixth street. He had occasion to go to a telephone office in the block between Seventh and Sixth streets. The entire curb line along the east side of this block was occupied by automobiles and other vehicles, with the exception of a space of some 22 feet, about the middle of the block. At this point the plaintiff undertook to drive in. The space was not sufficient to enable him to get his horse and buggy close up to the curb. He was compelled to drive in at an angle, and brought his horse to a stop, as he testified, with the horse's head There was offered in evidence a traffic ordinance of the city of Los Angeles, which contained this section: "Sec. 15. It shall be unlawful for the driver of any vehicle to stop the same, or to cause the same to be stopped, in or upon any street unless the side of such vehicle nearest the curb is not more than two feet distant from such curb; provided, however, that the provisions of this section shall not apply in case of emergency, or when such stop is made for the purpose of allowing another vehicle or a street car or interurban car or a pedestrian to pass in front of such vehicle so stopped, or when in compliance with an order or signal of a police officer." [1] The defendant requested an instruction to the effect that this provision required that both wheels of a four-wheeled vehicle stopped upon a public street should be not more than two feet from the curb, and that: "If plaintiff upon the occasion in question stopped the buggy in question while the same was in such position that the rear right wheel thereof was more than two feet from the nearest street curb, then he was guilty of negligence as a matter of law. The court did not err in refusing to give this instruction. It may be conceded that the appellant rightly construes the ordinance to mean that both the front and the rear wheel of a vehicle stopped on the street must be within two feet of the curb. The proviso appended to the section excludes from its operation, among other things, cases of "emergency." In view of the purposes for which the ordinance was adopted, the word "emergency" should not, in the connection in which it is here used, be given too narrow an interpretation. The plaintiff had a right to stop his vehicle on any block in which he had occasion to alight, and section 15 was surely not intended to make it impossible to exercise that right. "Emergency" is defined in Webster's Dictionary as "an unforeseen occurrence or combination of circumstances which calls for immediate action or remedy; pressing necessity; exigency." If the curb space was so occupied that plaintiff could |