the “acts of performance relied upon must be such that they would not have been done except for the contract of the parties”
How later courts described this case
- the “acts of performance relied upon must be such that they would not have been done except for the contract of the parties”
Written by the judges who cited it.
The opinion
Petition eor Rehearing
E. Otis Smith and Max S. Taggart, of Ontario, for the petition.
Gallagher & Gallagher, of Ontario, and Vernon K. Smith of Boise, Idaho, contra.
Before Latourette, Chief Justice, and Warner, Lusk, Tooze and Perry, Justices.
Petition denied.
PERRY, J.
The defendant has petitioned this court for a rehearing upon the merits upon the premise that the deductions of the court drawn from the evidence are erroneous and insufficient to sustain our finding of the existence of the copartnership relationship between William Jewell and George Harper, both now deceased.
After a careful review of the record, this court was then, and is now, satisfied that such a relationship between the parties did exist in November of 1948.
However, so that no misunderstanding may exist, we wish to elarify our opinion wherein we stated “that a partnership with equal ownership in all the partnership property therein was consummated by George Harper and William Jewell.” By the language used this court did not intend to determine the rights of *237 the parties in and to the capital assets of the dissolved copartnership, which fact can be determined only upon the accounting to be had, but only that they were equal partners in the copartnership in the sharing of its profits as it existed prior to its dissolution by the death of both partners.
The plaintiff is entitled to her costs and disbursements in this court. However, respondent’s objection to appellant’s cost bill for the transcript of testimony in the sum of $321.75 should be sustained and reduced to the proper amount of $193.05, since the cost of a carbon copy thereof is not properly taxable or allowable as only one transcript of testimony is necessary for the record on appeal. Bell v. Spain et al., 110 Or 114 , 222 P 322 , 223 P 235 .
With this correction the cost bill as filed shall stand.
The petition for rehearing is denied.