Martin Janci and Stefan Palansky, Appellees, v. Stefan, alias Steve Cerny, Appellant.

Gen. No. 24,163.

(Not to be reported in full.)

Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in this court at the March term, 1918.

Affirmed.

Opinion filed July 1, 1918.

Statement of the Case.

Bill by Martin Janci and Stefan Palansky, complainants, against Stefan, alias Steve Cerny and John Cemy, defendants for an accounting in a wool polling business. From a decree for complainants, defendant Steve Cerny appeals.

Sinden, Hassell & Osusky, for appellant; John H. McAuliffe, of counsel.

*503Abstract of the Decision.

1. Partnership, § 385a * — what is unauthorized diversion of property by partner necessitating accounting. The delivery of warehouse receipts for property belonging to a partnership by a member to another is an unauthorized diversion of partnership property and such partner may be required to account for the profits derived from the use of the property.

2. Equity, § 480* — when decree conforms to bill for accounting. There is no variance between a bill for an accounting charging wrongful use of partnership funds from which a partner has derived profits and a decree proceeding on the theory that transactions between the partner and another were transactions of the partnership and were on its behalf and for its benefit, and created a resulting trust, although not designated as such in the decree.

3. Partnership, § 388* — when partner not excused from accounting for profits. The payment of certain sums by a partner to other members of a partnership in settlement of claims out of profits derived from assets of the partnership does not excuse the partner from accounting for profits derived from the use of warehouse receipts, of which use the other partners did not have full knowledge.

4. Partnership, § 407* — when fraud by partner shown. Evidence held to warrant the finding, on a bill for a partnership accounting, that defendant, in fraud of the rights of complainants, had placed wool, which was owned by the partnership, in the hands of another person.

Max Luster, for appellees.