that the husband entertained no affection for his wife, are admissible, and their exclusion is prejudicially erroneous.

[2] ID. PERSONAL RELATIONS-ALIENATION OF AFFECTIONS-EVIDENCE STATE OF FEELINGS-MATERIALITY-ADMISSIBILITY OF DECLABATIONS. In an action for alienating the affections of a husband or wife, the state of feelings of such husband or wife is material, and it is a general rule of evidence that where the state of a person's affections or feelings is material, the declarations of such person as to his or her own state of affections are admissible.

[3] ID. ALIENATION OF AFFECTIONS OF HUSBAND CHARGE WHEN NOT SUSTAINED.-A charge of alienating the affections of a husband from his wife is not sustained if it appears that, before the defendant acted at all, the husband entertained no affection for his wife, and that his actions toward her were the result of his own sentiments, instead of being caused by any persuasion or inducement on the part of the defendant.

[4] ID.-ID.-MOTIVE OF DEFENDANT-MATERIALITY.-It is also well settled that in an action for alienating a wife's affections and enticing her away, a material point of inquiry is the intent with which the defendant has acted, and the decisions require a much stronger case to be made where the defendant is a parent of the enticed spouse.

[5] ID.-ID.-INTENT OF DEFENDANT-ADMISSIBILITY OF DECLARATIONS. Such declarations are not only admissible as tending to show the state of the husband's feelings towards the plaintiff, but also have a legitimate bearing upon the motives actuating the defendant in advising or seeking to bring about the separation.

[6] ID.-ID.-TESTIMONY OF SON AS TO DECLARATIONS-ERROR NOT CURED. The error in the exclusion of such declarations upon the examination of the defendant is not cured by the fact that the son was permitted to testify to some of the matters that he told his father, where the son's credibility as a witness is impeached, and the scope of inquiry permitted is not as broad as that included in the excluded declarations.

[7] ID.-ID.-FAILURE TO STATE NATURE OF DECLARATIONS OR PURPOSE OF TESTIMONY-ERROR NOT CURED.-The error in the exclusion of such declarations is not rendered harmless because of failure to indicate the nature thereof, where the questions are so framed as to show clearly the nature and purport of the declarations, nor is the error rendered harmless because of the failure of the defendant to state the purpose of the testimony.

Appeal from the Superior Court of San Luis Obispo CountyE. P. Unangst, Judge.

For Appellant-Carpenter & Gibbons.

For Respondent-Lamy & Putnam.

The defendant is the father of plaintiff's husband, and is sued for the recovery of damages on account of the alleged alienation of the husband's affections. The cause was tried withcut a jury and the court awarded the plaintiff a judgment in the sum of $1,500. Defendant appeals from an order denying his motion for a new trial.

The findings on the main issues are attacked as unsupported by the evidence, but we are satisfied, from an examination of the record, that there was sufficient evidence to justify the findings complained of.

The only remaining point made by the appellant is that the court erred in sustaining objections to various questions put to the defendant while he was testifying as a witness in his own

behalf. The plaintiff had introduced testimony tending to show that the defendant had been active in inducing the plaintiff to leave the ranch upon which she resided with her husband, and that when she attempted to return, the defendant took steps to prevent her from rejoining her husband. There was further testimony tending to show that the defendant had advised his son to leave the plaintiff and had threatened to disinherit him if he should again live with her.

In this state of the case the defendant sought to prove that during the marriage and before the separation of the plaintiff and her husband, and before the defendant had sought to bring about such separation, the husband had made certain declarations and statements to the defendant. The nature of these declarations is clearly indicated by the questions asked, some of which were as follows: "What did he" (the son) "say in that conversation?" (a conversation which took place shortly after the marriage). "After the marriage and before Dolly" (the plaintiff) "and Henry" (the husband) "moved to Huasna, did Henry ever complain to you of Dolly's treatment of him?" "After the marriage between your son and Dolly and before the 8th day of August, 1911, did Henry ever tell you that he could not get along with Dolly?" "After the marriage of your son and daughter and before Dolly left the ranch at Huasna in August, 1911, did your son ever tell you that Dolly drank to such an extent that he could not control her, or did he ever tell you during that time that she abused him so bad that he could not live with her?"

[1] These questions were objected to on the ground that they were irrelevant, incompetent and immaterial, self-serving and hearsay, and the court sustained the objections, on the theory, as it said, "that self-serving declarations are not admissible as such". The rulings, which were not based on any merely formal ground, were erroneous. [2] In an action for alienating the affections of a husband or wife, the state of the feelings of such husband or wife is material. [3] A charge of alienating the affections of a husband from his wife is not sustained if it appears that, before the defendant acted at all, the husband entertained no affection for his wife, and that his actions toward her were the result of his own sentiments, instead of being caused by any persuasion or inducement of the defendant. In this case, therefore, the relations between the plaintiff and her husband, and the nature of his feelings toward her were a proper subject of inquiry. It is a general rule of evidence that where the state of a person's affections or feelings is material, the declarations of such person as to his or her own state of affections are admissible. (Wigmore on Evidence, sec. 1730.) This rule has been applied in many cases similar to the one before us. A few of these may be cited: Gilchrist v. Bale, 8 Watts. 335; Glass v. Bennett, 89 Tenn. 478; Price v. Price, 90 Iowa, 693; Perry v. Lovejoy, 49 Mich 529. See, also, note to Fratini v. Caslini, 44 Am. St. Rep. 849.

[4] It is also well settled that in an action for alienating a wife's

affections and enticing her away, a material point of inquiry is the intent with which the defendant has acted. It must appear that the defendant has acted from improper motives. The decisions require a much stronger case to be made out where the defendant is a parent of the spouse alleged to have been enticed. (Hutcheson v. Peck, 5 Johns. 196; Bennett v. Smith, 21 Barb. 439; Glass v. Bennett, supra.) [5] The evidence here offered not only tended to show the state of the husband's feelings toward the plaintiff, but it also had a legitimate bearing upon the motives actuating the defendant in advising or seeking to bring about a separation. It was a part of the information upon which he acted, and he was entitled to have it considered by the court in the determination of the question whether he was acting maliciously or in good faith and for the legitimate protection of his son.

[6] It was virtually conceded on the argument that the testimony should have been admitted. It was argued, however, that its exclusion was harmless because the son was permitted to testify to some of the matters that he had told his father. This did not cure the error. The scope of the inquiry permitted in questioning the son did not cover as broad a field as that included in the questions above quoted. Furthermore, the son's credibility as a witness was impeached, and it is quite evident from the record that the judge himself viewed his testimony with suspicion. Under these circumstances, there can be no doubt of the prejudicial effect of the refusal to allow the defendant's own testimony regarding the declarations made to him by his son. [7] The additional point is made that the sustaining of an objection to questions like those under discussion will not furnish ground for reversal, in the absence of a statement indicating to the court the nature of the testimony sought to be elicited. But the rule thus invoked can have no application here, since the questions themselves were so framed as to show clearly the nature and purport of the declarations sought to be proved. Nor was the defendant called upon to explain the purpose for which the testimony was offered. Such explanation may be necessary where testimony is admissible for a limited purpose only. But here the declarations were admissible generally, and had a direct bearing on one of the main issues in the case. We think the appellant was entitled to have this evidence heard and considered by the court.

The order denying a new trial is reversed.

We concur:

LAWLOR, J.

SHAW, J.

SLOSS, J.

S. F. No. 5876. Department Two. April 23, 1915.

C. M. ARNOLD, Plaintiff and Respondent, v. B. E. LOOMIS and MOLLIE A. LOOMIS, Defendants and Appellants.

[1] PARTNERSHIP DEALING IN LANDS-ORAL AGREEMENT-EVIDENCE-A partnership for the purpose of dealing in real estate and dividing the profits may be formed by oral agreement and proved by parol evidence.

[2] ID.-ID.-PARTNERSHIP PROPERTY-CONVEYANCE TO WIFE OF PARTNER-KNOWLEDGE OF PURPOSE-VOLUNTARY TRUST-STATUTE OF LIMITATIONS.-Where property acquired by such a partnership is taken in the name of the wife of one of the partners with knowledge of the purpose for which it is made to her and of the partnership agreement, a voluntary trust is created against which the statute of limitations does not begin to run until the trustee repudiates it.

. Appeal from the Superior Court of Contra Costa County-R. H. Latimer, Judge.

For Appellants-William H. Schooler.

For Respondent-W. S. Tinning, Lee D. Windrem.

The complaint alleges that on May 1, 1899, plaintiff and B. E. Loomis were partners engaged in buying, selling and dealing in real property in Contra Costa county, and that on that date they entered into an agreement to buy a tract of about twenty acres from one A. F. Pacheco and his wife. Certain details of the transaction not necessary for consideration here are also set out in the complaint, and the subsequent payment of one-half of the purchase price for the land by each of the copartners is alleged. There are further averments that the Pachecos, at request of the copartners, conveyed the property to Mollie A. Loomis, wife of B. E. Loomis; that part of the property was afterwards sold by the copartners, the proceeds being used to discharge the liens of certain mortgages; that 8.66 acres of the land remained unsold, and that plaintiff had vainly demanded conveyance of a half interest therein from defendants. The prayer was for judgment decreeing that Mollie A. Loomis held the property in trust for her husband and for the plaintiff share and share alike and that she be compelled to execute a conveyance of plaintiff's interest to him, or to sell the land under order of court and distribute the proceeds in equal parts to the copartners. In their answer the defendants denied the existence of the alleged copartnership, and the payment for the land in the manner alleged, but averred that the property was purchased by Mollie A. Loomis with her separate funds. The statute of limitations was also pleaded. Findings and judgment were in favor of plaintiff. Defendants have appealed from the judgment and from the order denying their motion for a new trial. The formation of a copartnership rests upon the testimony of Mr. Arnold alone. He did not prove any written contract of copartnership. The only writing in evidence which at all relates to the interest of plaintiff and B. E. Loomis in the land is as follows:

"San Francisco, March 4, 1901. "This will certify that C. M. Arnold is entitled to one-half of the net proceeds of the eight and a fraction acres situated on Wild Cat Creek when sold. Said land being in Contra Costa county, and that said Loomis shall in like manner share in the commissions to be made in case of sale of the Horton tract or any portion of said land adjoining the 8.66 acres.

“(Signed) C. M. Arnold,
"B. E. Loomis."

Mrs. Loomis as a witness stated that she had read this document but had regarded it as merely an agreement to divide commissions. The plaintiff testified that he had never conversed with Mrs. Loomis about the property either before or after the deed was executed and delivered to her as grantee of the Pachecos. His theory was that a trust in his favor had been thrown upon Mollie A. Loomis by her acceptance of the deed.

Appellants insist that there is no evidence to support the finding with reference to the existence of a partnership between plaintiff and Mr. Loomis. [1] It is true that the formation of the copartnership rests upon Mr. Arnold's testimony, but a COpartnership of this kind may be created by parol (Coward v. Clanton, 79 Cal. 26; Bates v. Babcock, 95 Cal. 484), and necessarily proof of its continued existence may depend entirely upon oral testimony. But there was other evidence that B. E. Loomis had admitted the existence of a partnership in the ownership of the land. [2] Plaintiff's wife and another witness testified to such admissions and the written instrument clearly recognizes the right of C. M. Arnold to share equally in the "net proceeds" of the land in question. But appellants say that Mrs. Loomis was not bound by any of these things. While it is true that she was not present when the copartnership was formed or when the admissions in evidence were made by her husband, it is equally true that she knew of the writing in which Mr. Loomis unqualifiedly admitted that Mr. Arnold was entitled to one-half of the "net proceeds". This admission was made within two years after the land was purchased. Mrs. Loomis testified that her husband acted as her agent in all the matters pertain ing to the property. She knew, as she admitted, that her husband and Mr. Arnold were to help sell the land and as sales of parts of it were made from time to time she signed the deeds. As Mr. Loomis was her agent, his acts were binding upon her.

But appellants insist that as Mrs. Loomis furnished part of the money for the property she acquired an interest which must be recognized. The court found that she advanced part of the money paid by her husband, but that she was afterwards repaid. This finding is supported by plaintiff's testimony that the entire purchase price of the land was realized and paid from the sales of a portion of it, and it is therefore immaterial how much was advanced by either partner or the source from