11 App. D. C. 543. In that case Chief Justice Alvey, speaking for the court, said: "But if the release was, as contended by the plaintiff, procured from him by any fraudulent device or deception, and he has not subsequently ratified it, he may show the facts in evidence, and avoid the release in an action at law, when set up as a bar to the action. Formerly, this right of avoiding a release under seal, on the ground of fraud, in an action at law, when set up as a defense to the action, was generally denied, and the party was referred to a court of equity, in jurisdictions where the remedies at common law and equity are separate. But it is now generally held, by a great preponderance of the authority, that a release so set up as a defense may be avoided at law." The condition here sought to be imposed upon defendant is one to which it never agreed to be bound, and which was not within its contemplation when the bond was executed. That it was never intended by plaintiff and Linderman that the bonds should be returned by Linderman to plaintiff, that the bonds in fact never passed into the possession of Linderman; and that it was not intended by them at the time that the bonds should pass into the hands of Linderman, are facts supported by evidence in the record, which should have been submitted to the jury to determine, as a matter of fact, whether or not the alleged fraud was committed. If the alleged fraud is found by the jury to have been perpetrated upon defendant, with the knowledge of plaintiff, it forms a complete defense to this action. The judgment is reversed, with costs, and the cause remanded for a new trial. Reversed. D. C.] Syllabus. SMITH v. LANCASTER, PARTNERS; ESTOPPEL; EQUITY; APPEAL AND ERROR; COSTS. 1. Where parties advertise as partners and use a partnership name, they become partners by estoppel as to third persons dealing with them on the faith of such representations, but as between themselves their relations as partners depend upon contract express, or reasonably to be implied from all of the circumstances; and when one of the parties alleges the existence of a general partnership, the burden of proof is upon him to so show. 2. On an appeal by the plaintiff from a decree based upon a finding of fact that a general partnership did not exist between the plaintiff and the defendant, this court affirmed the decree, although in doubt as to whether the evidence showed that the plaintiff had been fairly treated by the defendant, the court not being satisfied that the plaintiff had discharged the burden upon him of showing that a general partnership existed. 3. In a suit for the dissolution of an alleged partnership, in which the plaintiff alleged, and the defendant denied, the existence of a general partnership, the evidence was reviewed, and the decree dismissing the bill affirmed. 4. Where, on appeal in an equity suit, the appellant sought by designation and direction to exclude from the record much irrelevant matter, but the appellee caused it to be included, thereby greatly increasing the cost of the transcript and printed record, this court, in affirming the decree, required the appellee to pay one half of the costs. No. 2235. Submitted February 8, 1911. Decided April 3, 1911. HEARING on an appeal by the plaintiff from a decree of the Supreme Court of the District of Columbia in a suit in equity dismissing a bill for the dissolution of a partnership and for a partnership accounting. Affirmed. The facts are stated in the opinion. Mr. Richard A. Ford for the appellant. Mr. John M. Thurston and Mr. J. Holdsworth Gordon, and Mr. William A. Gordon for the appellee. Mr. Chief Justice SHEPARD delivered the opinion of the Court: This is an appeal from a decree dismissing a bill for the dissolution of a partnership, and an account. The bill of Herbert E. Smith alleges that he entered into partnership with Charles C. Lancaster, March 20th, 1905, for the general practice of law in the city of Washington, under the name of Lancaster & Smith. That the receipts of the business were taken and used by the defendant, who undertook to keep books showing the same and expenditures. That an incorrect balance of said books was had December 31, 1905, and none has been had since. That defendant appropriated to his own private use the receipts of said partnership, refusing to account to plaintiff for any part thereof. The answer of the defendant denies that any general partnership ever existed between the parties, and alleges that defendant, who had been many years in business in Washington and had an extended clientage, in 1904, became acquainted with plaintiff, who was then practising law in Porto Rico. That plaintiff desired to remove to Washington, and believed that he could command a large business from Porto Rico and other possessions of the United States. That he offered to take plaintiff into his office, and to associate him from time to time in special cases, in which cases he should have half of the fees collected; and that when he needed his services in cases coming from former clients, he would retain him, paying special fees for said services. That this offer was accepted, and plaintiff came into the office and entered upon its performance. That he consented to the use of the firm name of Lancaster & Smith, and the advertising of the same, but for the purposes aforesaid. As stated by the plaintiff, the question involved is one of fact. Was there a general partnership created by contract between the parties as contended by the plaintiff, or was it the special, limited arrangement claimed by the defendant. The only direct evidence as to the terms of the association was that of the parties themselves. The undisputed facts are that defendant had been engaged in a collection and claim practice before Congress and the court of claims, which had been carried on with more or less success, and that he had a number of clients who regularly intrusted him with their business. These were chiefly United States Commissioners, clerks, and other officers, whose fee bills were frequently rejected in the Department of Justice. He had little or no general practice in the courts of law or equity. Plaintiff was practising law in Porto Rico in 1904, and seems to have had some experience in general practice. He also spoke the Spanish language. He entered the defendant's office in 1905. Notice of partnership under the name of Lancaster & Smith was immediately given by circular and advertisement. Plaintiff was introduced by defendant as his partner. Stationery showing this partnership was procured and used. Plaintiff was taken into and assisted in some old cases of defendant in the court of claims, and briefs and pleadings were filed in the court of claims generally in the partnership name. It is apparent that defendant expected that a large amount of business would be obtained from Porto Rico through plaintiff. This expectation was not realized. Defendant continued, while using the partnership letter heads, to correspond chiefly with his former clients in his individual name, and to take powers of attorney from them to himself. He divided fees with plaintiff in some, at least, of the cases in which he had taken him. Defendant continued to keep what books were kept. Money was deposited in his individual name and drawn by his check. The office had been rented by him, and when a change was made to another building, the lease was taken in his name. After December 31, 1905, defendant made some payments of fees to plaintiff in special cases according to his own estimate of plaintiff's services therein. This condition continued until April 18, 1908, when plaintiff, without giving notice of his intentions, left the of fice, and two days later filed this bill. Plaintiff introduced in evidence the letters written by defendant to him while he was in Porto Rico, in 1904 and early in 1905. The bulk of this is unimportant. It does not amount to a general partnership, but contains language from which, if not negatived by other circumstances, one might be inferred. At the same time, when considered in connection with the actions of the defendant in the conduct of the business, it is not inconsistent with his contention as to the actual relations between the parties. The conduct of the parties in advertising and using a partnership name was sufficient to make them partners by estoppel as to third persons dealing with them in the faith of such representations, yet, as between themselves, something more is necessary. Their relations as to each other depend upon contract express, or reasonably to be implied from established circumstances. The burden of establishing the general partnership is upon the plaintiff. While his testimony is direct and is supported by some circumstances, his actions and apparent acquiescence in the actions of defendant from December 31, 1905, to April 18, 1908, are inconsistent with his contention. On the other hand, the denial of the defendant is equally positive, and while his earlier actions are to a considerable extent inconsistent therewith and contradictory, he is supported by the circumstances shown to have existed during the period before mentioned. It would subserve no useful purpose to review the voluminous evidence. This has been carefully examined, and it is sufficient to say that, while we have some doubt as to whether the plaintiff had been fairly and justly treated, we are not satisfied that he has discharged the burden under which he rests; and therefore would not be justified in disturbing the conclusion of the learned trial justice. The decree must therefore be affirmed. It is unneces We have said that the record is voluminous. sarily so. Much of the evidence introduced by the defendant (which the Examiner who took the depositions was bound to receive and return) consisted of records and pleadings in cases in the court of claims, blank pleadings and forms, letters and |