(dissenting) — I dissent from that portion of the majority opinion which holds that there was an oral agreement providing for the joint operation of the business prior to January 1, 1947.
Appellant bought and paid for the hotel property in March, 1944. Respondent contributed nothing financially toward this venture. August 14, 1944, respondent, as lessee, leased one of the store fronts from appellant, as lessor, at a rental of thirty-five dollars a month and operated a smoke shop. To finance this operation he borrowed five hundred dollars from appellant and gave her his promissory note. May 1, 1945, appellant leased to respondent for two years, at one hundred and thirty-five dollars a month, the store front previously leased and tyvo additional store fronts, where he operated a restaurant. Later, on March 26, 1946, appellant leased the same premises to respondent for a period of five years for a monthly rental of one hundred and *564thirty-five dollars. Respondent operated these premises solely as his own business and made no accounting to appellant.
January 20, 1947, a partnership agreement (drawn up by respondent’s attorney) was entered into between Margaret Cunningham, as first party, and Charles Battee, as second party. It recited that in 1943, and subsequent thereto, first party purchased the real estate involved, and that, by deeds executed November 8, 1946, and January 20, 1947, first party had given to second party an undivided one-half interest in said property. The agreement then recited:
“Whereas, the parties desire to form a partnership for the management of the improvements located on the above described real estate, and to have second party manage the same, Now Therefore
“It Is Hereby Agreed:
I.
“That the parties hereto associate themselves together in a partnership for the management and control of the above described real estate and of all buildings and improvements situated thereon, from and after the first day of January, 1947; that each party shall have a fifty (50%) per cent interest in the profits and in the losses of said business.”
After setting forth the provisions for the conduct of the partnership, the parties provided, in Paragraph VIII:
“This agreement represents the entire agreement between the parties hereto and shall become effective as of January 1, 1947, as aforesaid.”
Clearly, no partnership existed-prior to January 1, 1947'. When the parties stated, on January 20, 1947, that the agreement represented the entire agreement between the parties, they stipulated that no other oral contract had been entered into either for a partnership or for a joint operation. If any joint operation had been conducted prior to January 20, 1947, whereby appellant was indebted to respondent, it would have been mentioned in the written contract.
Respondent takes the view that as to anything earned prior to January 1, 1947, what was his was his own, and *565what was hers was hah his. He has failed to prove an oral contract providing for any joint operation of the property prior to the execution of the partnership agreement.
July 9, 1951. Petition for rehearing denied.