(dissenting). The following declarations of the Revised Civil Code relating to the law of partnership, in connection with the maxim, “he who consents to an act is not wronged by it” (Rev. Civ. Code, § 2414), are applicable to the case at bar:
“Sec. 1743. All profits made by a general partner in the course of any business usually carried on by the' partnership, belong to the firm.
“Sec. 1744. A general partner who agrees to give his personal attention to the business of the partnership, may not engage in any business which gives him 'an interest adverse to that of the partnership, or which prevents him from giving to such business all the attention which would be advantageous to it.
“'Sec. 1745. A partner may engage in any separate business, except as otherwise provided by the last two sections.
“Sec. 1746. A general partner transacting business contrary to the provisions of this article, may be required by any copartner to account to the partnership for the profits of such business.”
The Gorman & Madden partnership being engaged in the live stock business at Castlewood, if plaintiff engaged in the same business at Ft. Pierre without his copartners’ consent, they might be entitled to participate in his profits; but if he engaged in such business on his individual account, with their consent, they would not be entitléd to an accounting. Having proved by their own *329testimony that plaintiff engaged in the Ft. Pierre business, after notice to them and without objection on their part, defendants attempted to prove that such business was conducted by a partnership consisting of Brown, Sorenson, the plaintiff, and themselves. Evidence tending to prove the existence of such a partnership wa's properly excluded or disregarded by the referee. It was irrelevant. It tended to -prove a fact not alleged in the answer — a fact not only inconsistent with, but diametrically opposed to, the averment therein that the “plaintiff engaged in a business contrary to the provisions of” the Gorman & Madden partnership, which means, if it means anything, that plaintiff engaged in such business against the objection or without the'consent of his -copartners. Clearly, such an averment is not consistent with the theory that plaintiff was acting for and on behalf of the defendants as a member of the Ft. Pierre partnership of which they also were members.
Having discovered no error prejudicial to the defendants, T think the judgment of the circuit court should be affirmed.