concurring in part, dissenting in part.
I agree with the majority that the record does not support an express agreement of the parties with respect to their relative interests in any of the property acquired during their final five year period of cohabitation. I also agree with the majority that the record supports a finding of an implied intent to share equally in the household items. In this connection, the majority states:
"* * *The use of joint checking and savings accounts to purchase household items, the cohabitation itself and the conception and birth of the child, however, are persuasive evidence of an intent to share equally in household items, whether purchased from a joint account or given to the parties while cohabiting. Beal v. Beal, supra. There was no evidence that defendant had a contrary intent until the parties separated.” 41 Or App at 71-72.
I disagree, however, with the conclusion that plaintiff has no interest in the duplex, which was the parties’ home, as well as an investment. Therefore, I dissent.
The trial court found in favor of plaintiff, although there were substantial discrepancies between her testimony and that of defendant. We should defer to the trial judge’s advantage in evaluating conflicting testimony, McCoy and McCoy, 28 Or App 919, 562 P2d 207, 29 Or App 287, 563 P2d 738 (1977), but whether we do or not, my reading of the record leads to the same evaluation of it.
On that basis, it appears that prior to the parties’ recohabitation in February, 1972, they had considered *74acquiring a place to buy, because they had been living in an apartment rented by plaintiff. They were looking for something in the nature of a duplex, including, according to defendant, a house which could be converted. They did not find one before they separated in November of 1971.
Defendant said he began looking for a duplex before he and plaintiff reunited, and had negotiated an earnest money agreement prior to that time. Plaintiff said defendant had found one he thought was interesting, gave her a copy of the listing, and they both looked at it. The earnest money agreement was signed March 29, 1972, by defendant as buyer, "a single man,” and he paid the initial down payment out of funds he received as disability compensation for an on-the-job injury. Plaintiff did not know until after closing that the real estate contract would be in defendant’s name alone.
The parties made their home in the second floor portion of the duplex and rented the other half. They opened joint bank accounts — both checking and savings —and both put most, if not all, of their earnings, and the rental income in those accounts. Most of their bills, including payments on the duplex contract, were paid from the joint checking account until the property was refinanced in June of 1976. (More about that below.) While the contract payments varied (because the escrow fees changed from time to time), they were approximately $250 per month. Defendant would have us believe that the amount over and above the rental payments received and deposited in the checking account was insignificant — approximately $20 per month. However, the duplex was rented originally for $137.50 per month, then increased to $150 per month and later to $180 per month. It appears, therefore, that at least $70 per month more than the rental payments was necessary to make the contract payments — and all of it came from the joint account until the refinancing.
*75In June of 1976, defendant refinanced the duplex contract by taking out a mortgage loan, the proceeds of which were used to pay off the contract, after which there was a balance of about $8,000. Out of that balance, defendant put $4,000 into a business he and a friend were starting; the remaining sum was put into a savings account with the mortgage lender, a savings and loan association. While the record is not entirely clear, it appears that the funds in that account were used to make the monthly mortgage payments and pay the real property taxes on the duplex.
With respect to the rented portion of the duplex, plaintiff helped to maintain it by cleaning it and shampooing the rugs between tenants, helped to repaint it, showed the unit to prospective new tenants, issue receipts for rent, etc.
The foregoing facts, in addition to those relied on by the majority to show an implied intent to share equally in the household items, are sufficient, though barely, to support the conclusion that there was an implied partnership with respect to the duplex, which had a business purpose {see ORS 68.110) even though the overall arrangement of the parties did not. The only factor which detracts from that conclusion is that bare legal title was in defendant. However, the record makes it clear that defendant, a wrestler and black belt judo practitioner, was the dominant and dominating partner. It appears that defendant did not intend that plaintiff have any rights in anything acquired by the parties during their cohabitation, whether purchased from their joint funds or not. Yet the majority is willing to find an implied intent to share equally in the household items, but not their home and only investment. His attitude, at least at trial, was that what was his was his, and what was hers was his. Anything which lent itself to having a document of title listed him as the sole owner. The most dramatic example of this is his insistence that title to a car purchased in plaintiff’s name before their final period *76of cohabitation be transferred to him after she became pregnant in 1973. Since he didn’t want it, he sold it, leaving plaintiff’s parents liable for the balance of the purchase price because they had cosigned the paper.
Here, the parties pooled their earnings in joint bank accounts and paid their bills, generally, from the joint checking account. Most, if not all, of plaintiff’s earnings were spent on their joint expenses, and some of them went into the duplex. While legal title to everything to which a document of title was applicable was in defendant, in the context of the parties’ arrangement that fact does not seem to have much real significance. He refused her request to put title in both of their names because he thought it might complicate things and because he said she and the child would get it if he died. How plaintiff would get any part of it, absent a will so providing, is not explained unless she had an interest by virtue of their arrangement. His intention, then, with respect to plaintiff’s having an "interest” in the property, as opposed to his bare legal title, was ambivalent. One half of the duplex was their home, and she did all of the housework, laundry and cooking, even when she was working. The rental from the other half went into a joint account to which she had as much legal right as he — and in fact wrote most of the checks. The monthly contract payments were made from that account, at least until the refinancing in June, 1976. Thereafter, mortgage payments and taxes were made from an account established with funds derived from the mortgage loan on the property — in other words, the property itself was funding those payments.
While it is true that he earned more than she during the last five years of their relationship, the discrepancy is nowhere near as great as he contends. As best I can determine from the testimony, most of their earnings were deposited in one or the other of the joint accounts. No effort was made to keep segregated accounts of anything.
*77On these facts, I conclude that there was an implied partnership agreement between the parties with respect to the duplex. While it does not follow that it was a 50-50 partnership, given the fact that one-half of the duplex was their home, which she maintained for the benefit of the parties and their child, and that she put money and effort into the entire emit, it is not unreasonable to conclude that plaintiff is an equal owner.
Accordingly, I would affirm the decree as it relates to the disposition of the duplex, except that I agree with the majority that it must be modified to eliminate the requirement that defendant pay $3,000 to plaintiff’s parents, whose rights are not involved in this proceeding. In all other respects I would affirm.
Thornton, Lee and Roberts, JJ., join in this dissent.