NEAL, Judge.

Plaintiff-appellee Norman E. Sweet (Sweet) brought an action for dissolution of an alleged partnership and for an accounting in the Ripley Circuit Court against defendant-appellant Paul Eugene Vohland (Vohland). From a judgment in favor of Sweet in the amount of $58,733, Vohland appeals.

We affirm.

STATEMENT OF THE FACTS

The undisputed facts reveal that Sweet, as a youngster, commenced working in 1956 for Charles Vohland, father of Paul Eugene Vohland, as an hourly employee in a nursery operated by Charles Vohland and known as Clarksburg Dahlia Gardens. Upon the completion of his military service, which was performed from 1958 to 1960, he resumed his former employment. In approximately 1963 Charles Vohland retired, and Vohland commenced what became known as Vohland’s Nursery, the business of which was landscape gardening. At that time Sweet’s status changed. He was to receive a 20 percent share of the net profit of the enterprise after all of the expenses were paid. Expenses included labor, gasoline, insurance, burlap, nails, insecticide, fertilizer, seed, straw, plants, stock and seedlings, and any other expense. The compensation was paid on an irregular basis. Every week, two weeks, or perhaps even a month, Sweet and Vohland sat down and computed all income that had been received and all expenses that had been incurred since the last settlement. After the expenses had been deducted from the income, Sweet would receive a check for 20 percent *862of the balance. Occasionally Sweet would receive an advance draw which would be deducted from his next settlement. No Social Security or income tax was withheld from the checks.

No partnership income tax returns were filed. Vohland and his wife, Gwenalda, filed a joint return in which the business of Vohland’s Nursery was reported in Voh-land’s name on Schedule C. Money paid Sweet was listed as a business expense under “Commissions.” Also listed on Schedule C were all of the expenses of the nursery, including investment credit and depreciation on trucks, tractors, and machinery. Sweet’s tax returns declared that he was a self-employed salesman at Vohland’s Nursery. He filed a self-employment Schedule C and listed as income the income received from the nursery; as expenses he listed travel, advertising, phone, conventions, automobile, and trade journals. He further filed a Schedule C-3 for self-employment Social Security for the receipts from the nursery.

Vohland handled all of the finances and books and did most of the sales. He borrowed money from the bank solely in his own name for business purposes, including the purchase of the interests of his brothers and sisters in his father’s business, operating expenses, bid bonds, motor vehicles, taxes, and purchases of real estate. Sweet was not involved in those loans. Sweet managed the physical aspects of the nursery and supervised the care of the nursery stock and the performance of the contracts for customers. Vohland was quoted by one customer as saying Sweet was running things and the customer would have to see Sweet about some problem.

Evidence was contradictory in certain respects. The Vohland Nursery was located on approximately 13 acres of land owned by Charles Vohland. Sweet testified that at the commencement of the arrangement with Vohland in 1963, Charles Vohland grew the stock and maintained the inventory, for which he received 25 percent of the gross sales. In the late 1960’s, because of age, Charles Vohland could no longer perform. The nursery stock became depleted to nearly nothing, and new arrangements were made. An extensive program was initiated by Sweet and Vohland to replenish and enlarge the inventory of nursery stock; this program continued until February, 1979. The cost of planting and maintaining the nursery stock was assigned to expenses before Sweet received his 20 percent. The nursery stock generally took up to ten years to mature for market. Sweet testified that at the termination of the arrangement there existed $293,665 in inventory which had been purchased with the earnings of the business. Of that amount $284,860 was growing nursery stock. Vohland, on the other hand, testified that the inventory of 1963 was as large as that of 1979, but the inventory became depleted in 1969. Voh-land claimed that as part of his agreement with Charles Vohland he was required to replenish the nursery stock as it was sold, and in addition pay Charles Vohland 25 percent of the net profit from the operation. He contends that the inventory of nursery stock balanced out. However, Voh-land conceded on cross-examination that the acquisition and enlargement of the existing inventory of nursery stock was paid for with earnings and, therefore, was financed partly with Sweet’s money. He further stated that the consequences of this financial arrangement never entered his mind at the time.

Sweet’s testimony, denied by Vohland, disclosed that, in a conversation in the early 1970’s regarding the purchase of inventory out of earnings, Vohland promised to take care of Sweet. Vohland acknowledged that Sweet refused to permit his 20 percent to be charged with the cost of a truck unless his name was on the title. Sweet testified that at the outset of the arrangement Voh-land told him, “he was going to take . . . me in and that ... I wouldn’t have to punch a time clock anymore, that I would be on a commission basis and that I would be, have more of an interest in the business if I had ‘an interest in the business.’ . . . He referred to it as a piece of the action.” Sweet testified that he intended to enter into a partnership. Vohland asserts that no *863partnership was intended and that Sweet was merely an employee, working on a commission. There was no contention that Sweet made any contribution to capital, nor did he claim any interest in the real estate, machinery, or motor vehicles. The parties had never discussed losses.

After Charles Vohland died (in 1973) Vohland contends that he paid $1,000 a year to Mary Crystal Vohland, his stepmother and current owner of the 13 acres, as a gift, and in addition replenished the nursery stock as it was taken and sold. Sweet contends the payments were a flat fee for the use of the land.

ISSUES

Vohland presents four issues for review:

I.Was the evidence sufficient to support the finding of the trial court that Sweet had a 20 percent interest in the inventory of the landscaping business?

II.Was the evidence sufficient to support the finding of the trial court that Vohland failed to advise Sweet that trees, materials, and supplies were costs of doing business and that “net” was the amount left after such costs had been paid in full?

III. Was the evidence sufficient to support the finding of the trial court that Vohland and Sweet had an inventory with a value of $293,665?

IV. Was the evidence sufficient to support the conclusion of law of the trial court that the business relationship of the parties, Vohland and Sweet, was a partnership?

DISCUSSION AND DECISION

Issues I, II and IV. Existence of partnership

The principal point of disagreement between Sweet and Vohland is whether the arrangement between them created a partnership, or a contract of employment of Sweet by Vohland as a salesman on commission. It therefore becomes necessary to review briefly the principles governing the establishment of partnerships.

It has been said that an accurate and comprehensive definition of a partnership has not been stated; that the lines of demarcation which distinguish a partnership from other joint interests on one hand and from agency on the other, are so fine as to render approximate rather than exhaustive any attempt to define the relationship. Bacon v. Christian, (1916) 184 Ind. 517, 111 N.E. 628.

A partnership is defined by Ind.Code 23-4-l-6(l) (Uniform Partnership Act of 1949):

“A partnership is an association of two or more persons to carry on as co-owners a business for profit.”

Ind.Code 23-4-1-7 sets forth the rules for determining the existence of a partnership:

“In determining whether a partnership exists, these rules shall apply:

(1) Except as provided by section 16 persons who are not partners as to each other are not partners as to third persons.

(2) Joint tenancy, tenancy in common, tenancy by the entireties, joint property, common property, or part ownership does not of itself establish a partnership, whether such co-owners do or do not share any profits made by the use of the property.

(3) The sharing of gross returns does not of itself establish a partnership, whether or not the persons sharing them have a joint or common right or interest in any property from which the returns are derived.

(4) The receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business, but no such inference shall be drawn if such profits were received in payment:

(a) As a debt by instalments or otherwise,

(b) As wages of an employee or rent to a landlord,

(c) As an annuity to a widow or representative of a deceased partner,

*864(d) As interest on a loan though the amount of payment vary with the profits of the business,

(e) As the consideration for the sale of a good will of a business or other property by instalments or otherwise.”

Under Ind.Code 23-4-1-7(4) receipt by a person of a share of the profits is prima facie evidence that he is a partner in the business. Endsley v. Game-Show Placements, Ltd., (1980) Ind.App., 401 N.E.2d 768. Lack of daily involvement for one partner is not per se indicative of absence of a partnership. Endsley, supra. A partnership may be formed by the furnishing of skill and labor by others. The contribution of labor and skill by one of the partners may be as great a contribution to the common enterprise as property or money. Watson v. Watson, (1952) 231 Ind. 385, 108 N.E.2d 893. It is an established common law principle that a partnership can commence only by the voluntary contract of the parties. Bond v. May, (1906) 38 Ind.App. 396, 78 N.E. 260. In Bond it was said, “[t]o be a partner, one must have an interest with another in the profits of a business, as profits. There must be a voluntary contract to carry on a business with intention of the parties to share the profits as common owners thereof.” Id., 38 Ind.App. at 402, 78 N.E. 260. In Bacon, supra, in reviewing the law relative to the creation of partnerships, the court said:

“From these, and other expressions of similar import, it is apparent to establish the partnership relation, as between the parties, there must be (1) a voluntary contract of association for the purpose of sharing the profits and losses, as such, which may arise from the use of capital, labor or skill in a common enterprise; and (2) an intention on the part of the principals to form a partnership for that purpose. But it must be borne in mind, however, that the intent, the existence of which is deemed essential, is an intent to do those things which constitute a partnership. Hence, if such an intent exists, the parties will be partners notwithstanding that they proposed to avoid the liability attaching to partners or [have] even expressly stipulated in their agreement that they were not to become partners. [Citation omitted]

It is the substance, and not the name of the arrangement between them, which determines their legal relation toward each other, and if, from a consideration of all the facts and circumstances, it appears that the parties intended, between themselves, that there should be a community of interest of both the property and profits of a common business or venture, the law treats it as their intention to become partners, in the absence of other controlling facts.”

Id. 184 Ind. at 521-522, 111 N.E. 628.

Watson, supra, has substantial similarities to the case at bar, and the reader should study it. Briefly, the facts disclose that in a suit for the dissolution of a partnership and an accounting, Mary Watson commenced to work on a farm, and thereafter, in 1945, she assumed the management thereof. She made no capital contributions, and there was no specific agreement, oral or written. At the commencement, the farm and certain machinery and livestock were owned by Keller. From the proceeds of the sale of grain, livestock, and produce, new and additional machinery was purchased, and the herds of livestock were increased. Debts on old machinery were retired. Separate income tax returns were filed reflecting that, in approximate terms, Mary Watson received one fourth, Elizabeth Watson one fourth, and Keller one half the net income of the farming operation. The court, citing Bacon, supra, affirmed the trial court’s money judgment in favor of Mary Watson for a portion of the increase of the machinery and livestock herds. The court stated:

“The facts and circumstances in this case are such that the court might readily conclude therefrom that Alice C. Keller, Elizabeth Watson and Mary E. Watson ‘intended, between themselves, that there should be a community of interest’ in any increment in the value of the capital and in the profits of their common venture in the operation of the Keller Farm. We *865find no controlling facts to the contrary, and under these circumstances the law will presume that they intended to form a partnership. [Citations omitted]

We believe the evidence here presents a state of facts from which the trial court could legally infer the establishment of a partnership with appellee having a one-fourth interest, appellant, Elizabeth Watson, a one-fourth interest, and appellant, Alice C. Keller, a one-half interest.”

Watson, 231 Ind. 391-393, 108 N.E.2d 893. The Watson court struck down the argument made in the ease at bar that Mary Watson made no capital contribution, stating that a partner may contribute skill and labor in lieu of capital. The court rested its decision on the grounds that Mary received no salary or wages for her services, and her sole income was from one fourth of the net profits arising from the operation of the farm.

The standard of review for a case such as this was stated in Endsley, supra.

“In reviewing the evidence to determine its sufficiency, we may only look to that evidence and the reasonable inferences to be drawn therefrom most favorable to the appellee. Butler v. Forker (1966), 139 Ind.App. 602, 221 N.E.2d 570. This Court will neither weigh the evidence nor judge the credibility of the witnesses. Butler, supra. It is the province of the trial court to determine which witness to believe when it hears the evidence. Jackman v. Jackman (1973), 156 Ind.App. 27, 294 N.E.2d 620, 625. We cannot reverse upon the basis of conflicting evidence. Franks v. Franks (1975), 163 Ind.App. 346, 323 N.E.2d 678, 680. In order to reverse the finding of the trial court, the evidence must lead solely to a conclusion which is contrary to that reached by the lower court. Butler, supra; Puzich, supra. In viewing the evidence before us in the prescribed fashion, we find that it does not lead solely to a conclusion which is contrary to that reached by the trial court.”

Id. 401 N.E.2d at 771-772. In the analysis of the facts, we are first constrained to observe that should an accrual method of accounting have been employed here, the enhancement of the inventory of nursery stock would have been reflected as profit, a point which Vohland, in effect, concedes. We further note that both parties referred to the 20 percent as “commissions.” To us the term “commission,” unless defined, does not mean the same thing as a share of the net profits. However, this term, when used by landscape gardeners and not lawyers, should not be restricted to its technical definition. “Commission” was used to refer to Sweet’s share of the profits, and the receipt of a share of the profits is prima facie evidence of a partnership. Though evidence is conflicting, there is evidence that the payments were not wages, but a share of the profit of a partnership. As in Watson, supra, it can readily be inferred from the evidence most favorable to support the judgment that the parties intended a community of interest in any increment in the value of the capital and in the profit. As shown in Watson, absence of contribution to capital is not controlling, and contribution of labor and skill will suffice. There is evidence from which it can be inferred that the parties intended to do the things which amount to the formation of a partnership, regardless of how they may later characterize the relationship. Bacon, supra. From the evidence the court could find that part of the operating profits of the business, of which Sweet was entitled to 20 percent, were put back into it in the form of inventory of nursery stock. In the authorities cited above it seems the central factor in determining the existence of a partnership is a division of profits.

From all the circumstances we cannot say that the court erred in finding the existence of a partnership.

Issue III. Excessive judgment

Vohland argues that the evidence is insufficient to support a finding that the value of the inventory was $293,665. The court’s award to Sweet was 20 percent of this amount. Vohland argues that the fig*866ure testified to by Sweet included $284,860 in nursery stock growing on land owned by Mary Crystal Vohland, and this stock was therefore her property. However, the evidence is clear that some sort of lease arrangement was involved wherein Mary Crystal Vohland was paid and the stock could be removed without her prior consent. Vohland cites no authority to support his contention, nor does he develop any cogent argument as to why nursery stock planted on leased premises are not fructus indus-triales.

Generally, fructus industriales, . such as growing crops, are considered to be personal property and are not a part of the real estate. Niagara Oil Company v. Ogle, (1912) 177 Ind. 292, 98 N.E. 60; Perry v. Hamilton, (1893) 138 Ind. 271, 35 N.E. 836; Richardson v. Scroggham, (1974) 159 Ind.App. 400, 307 N.E.2d 80; 9 I.L.E. Crops § 2. However Vohland makes a bare assertion unsupported by authority that insomuch as Mary Crystal Vohland owned the real estate, neither he nor Sweet had any interest whatever in the nursery stock planted there at the admitted expense of Sweet and Voh-land. We hold that Vohland has not complied with Ind. Rules of Procedure, Appellate Rule 8.3(A)(7) by presenting citations of authorities and cogent argument, and has waived that issue. Krueger v. Bailey, (1980) Ind.App., 406 N.E.2d 665; American Optical Company v. Weidenhamer, (1980) Ind.App., 404 N.E.2d 606; Nationwide Mutual Insurance Company v. Pomeroy, (1967) 141 Ind.App. 288, 227 N.E.2d 448.

For the above reasons this cause is affirmed.

Affirmed.

RATLIFF, P. J., and ROBERTSON, J., concur.

ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Docket No. 171)

EDWARD M. CHEN, District Judge.

I. INTRODUCTION

Defendants Stephan Jenkins; Bradley Hargreaves; Third Eye Blind, Inc.; 3EB Touring, Inc.; and Stephan Jenkins Productions, Inc. bring the current motion for summary judgment or, alternatively, partial summary judgment of Plaintiff Anthony Fredianelli’s First Amended Complaint (“FAC”).1 Plaintiffs complaint includes six causes of action stemming from his participation as lead guitarist for the rock group Third Eye Blind (“the Band”) from 1993 to 1994 and from 2000 to 2009, and his alleged co-ownership of the Band and related entities. Jenkins is the founder, singer, and leader of the Band, and Hargreaves its drummer. The six causes of action in the FAC are for (1) breach of contract; (2) reasonable value of services performed (Plaintiffs “quantum meruit” claim); (3) constructive trust; (4) accounting; (5) declaratory relief regarding ownership of copyrights; and (6) declaratory relief regarding ownership of trademarks. FAC, Docket No. 137-1, ¶¶ 79-113; Order, Docket No. 152, ¶ 4 (making FAC the operative complaint). Defendants now move for summary judgment on each cause of action.

For the reasons stated herein, the Court GRANTS Defendants’ motion for summary judgment in its entirety except to the extent Plaintiffs claims for breach of contract and an accounting are based on his not receiving his full share of net touring revenues, irrespective of his status as a co-owner of the Band, as discussed further below.

II. EVIDENTIARY OBJECTIONS

The only evidence submitted by Plaintiff in opposition to Defendants’ motion for *1007summary judgment is a declaration with seven attached exhibits filed alongside Plaintiffs opposition brief as well as a supplemental declaration with a single exhibit filed following Defendants’ reply brief. See Fredianelli Decl., Docket No. 213-1; Supp. Fredianelli Decl., Docket No. 216. Defendants submitted fifty-seven separate objections to the evidence Plaintiff submitted in support of his opposition brief and objected separately to Plaintiffs supplemental declaration. See Defs.’ Objs., Docket No. 214-1; Defs.’ Objs. to Supp. Deck, Docket No. 219. “Before ordering summary judgment in a case, a district court must not only provide the parties with notice and an opportunity to respond to adverse arguments, it must also rule on evidentiary objections that are material to its ruling.” Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010). Material to this Order are Defendants’ objections to Fredianelli’s supplemental declaration, several sham affidavit objections to Fredianelli’s initial declaration, and several hearsay objections to Fredianelli’s initial declaration.

A. Supplemental Declaration

Plaintiffs supplemental declaration includes a single exhibit of alleged deposition corrections dated December 2009 for a March 2009 deposition he gave in the matter of Jenkins v. Godtland, Case No. CGC-08-476453 (Cal.Super.Ct. San Francisco County) (hereinafter, the “Godtland case”). See Docket No. 216. The Court need not consider Plaintiff’s supplemental declaration and attached exhibit because (1) it was filed in an untimely manner pursuant to Local Rule 7 — 3(d); (2) it violates the sham affidavit rule; and (3) the deposition corrections were untimely pursuant to California law.

First, Local Rule 7-3(d) provides that, once a reply is filed, “no additional memoranda, papers, or letters may be filed without prior Court approval,” except for objections to new evidence filed with the reply and notices of relevant judicial opinions published after the date of the opposition papers. Here, Plaintiffs new evidence does not fall within either exception and Plaintiff did not seek the Court’s approval to file his supplemental declaration.

Second, the sham affidavit rule provides that “a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony.” Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). Similarly, deposition corrections may not “include changes offered solely to create a material factual dispute in a tactical attempt to evade an unfavorable summary judgment.” Hambleton Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1225 (9th Cir.2005). There are two limitations on a district court’s discretion to invoke the sham affidavit rule: (1) “the district court must make a factual determination that the contradiction was actually a ‘sham’”; and (2) “the inconsistency between a party’s deposition testimony and subsequent affidavit must be clear and unambiguous to justify striking the affidavit.” Van Asdale v. Internat’l Game Tech., 577 F.3d 989, 998-99 (9th Cir.2009) (quotation marks and citation omitted).

Here, the affidavit claiming changes were made to the deposition transcript is a sham. Plaintiff has not submitted any evidence to corroborate that these deposition corrections were, in fact, made in December 2009 and not instead made in response to Defendants’ summary judgment motion in this case. Furthermore, the inconsistency between the original deposition testimony and the new affidavit is clear. While much of Defendants’ case rests on the argument that Plaintiff had no effective business or creative control in the Band, as testified to during Plaintiffs deposition in the Godtland case, Plaintiffs deposition corrections directly contradict this testimo*1008ny. See Supp. Fredianelli Decl. Ex. H at 4-5.

Lastly, under California law, Plaintiff only had thirty days following his March 11, 2009 deposition within which to make corrections; yet, he allegedly waited until December 2009 to do so. See Cal. Code Civ. Proc. § 2025.520(b); Fredianelli Decl. ¶ 43. Changes to the transcript would be barred under California law.

Plaintiff suggests that, nevertheless, he should not be bound by the transcript because he “made several attempts to get [his] original deposition transcript so [he] could make changes,” including calling his attorney’s office the day after the deposition and leaving “a message that [he] would like to see the transcript as soon as possible.” Fredianelli Decl. ¶ 41. In California, “[t]he attorney is authorized by virtue of his employment to bind the client in procedural matters arising during the course of the action but he may not impair the client’s substantial rights or the cause of action itself.” Linsk v. Linsk, 70 Cal.2d 272, 276, 74 Cal.Rptr. 544, 449 P.2d 760 (1969). Cases discussing when an attorney has impaired a client’s substantial rights or the cause of action itself do not deal with tactical or logistical decisions made during discovery, but rather instances where an attorney, by virtue of his conduct, has waived entire causes of action. See, e.g., Daley v. Butte County, 227 Cal.App.2d 380, 391-92, 38 Cal.Rptr. 693 (1964) (client not bound by attorney neglect resulting in dismissal for lack of prosecution). On the other hand, “[t]rial counsel is authorized to exercise his independent judgment with respect to strategic litigation decisions.” Cadle Co. v. World Wide Hospitality Furniture, Inc., 144 Cal.App.4th 504, 510, 50 Cal.Rptr.3d 480 (2006). Thus, even if the attorney’s failure to send Plaintiff a copy of his deposition transcript was due to negligence or mistake, Plaintiff is still bound by his attorney’s conduct. See Alferitz v. Cahen, 145 Cal. 397, 400, 78 P. 878 (1904) (“Where such questions of negligence and mistake arise, there must always come a time when, notwithstanding the hardship to the client, he must be bound by the errors and omissions of his attorney.”). In short, Mr. Fredianelli is bound to his deposition testimony.

Thus, the Court sustains Defendants’ objections to Plaintiffs alleged deposition corrections and Plaintiffs original deposition transcript stands unaltered.

B. Sham Affidavit Objections to Initial Declaration

Similar to them objections to Fredianelli’s deposition corrections, Defendants’ sham affidavit objections 12, 13(b), 16(b), 18(b), 21, 23(a), 30(c), 35(b), 36(b), and 37(a) each refer to sections of Fredianelli’s declaration wherein he states that he had a say in the business and creative decisions of the Band and that Jenkins did not have unilateral authority to make decisions on behalf of the Band, including decisions on whether or not to oust other musicians from the Band. See Defs.’ Objs., Docket No. 214-1. However, in his deposition Plaintiff testified that, up until March 2009, he never gained a say in the business and creative decision-making of the Band and that “Stephan leads.” See Fredianelli Dep. 78:20-22, 80:5-8. He further testified that “Stephan, basically, told [him] that [he] would have no role in the final decisions, in the decision making of the band” and that “[Jenkins] made an analogy as if he would be the United States and we would be smaller countries and he would' — if he wanted to ask for advice, he would ask,” but “[a]t the end of the day, he would reserve the right to make the decision and that that would not change.” Id. at 227:5-6. Lastly, he testified that Jenkins had the authority to fire *1009him. Id. at 243:21-244:8. Thus, as noted above, Plaintiffs declaration is inadmissible under the sham affidavit rule to the extent it contradicts this unequivocal deposition testimony.

C. Hearsay Objections to Initial Declaration

Of Defendants’ various hearsay objections, objections 8(a) and 11(b) are material to this Order. Objection 8(a) refers to paragraph 9 of Fredianelli’s declaration, wherein he states that Godtland “said the band was ready,” went over “that all members, including Stephan Jenkins, were employees of the corporations as well as owners,” and “told [Fredianelli] he had consulted with the band by conference call and that the points of our conversation were approved by the band.” See Defs.’ Objs., Docket No. 214-1, at 8. These statements are hearsay; Plaintiff has not cited an exception to hearsay. There is no showing, for instance, that Godtland made these statements as an agent of Jenkins on a matter within the scope of that relationship under Fed.R.Evid. 801(d)(2)(D). Plaintiff may not use them as evidence for the truth of the matters asserted: that the band was ready, that all members were employees as well as owners of the corporations, or that Godtland consulted with the Band by conference call and the Band members approved the points of his conversation with Plaintiff. The objection on this ground is sustained.

Objection 11(b) refers to paragraph 12, in which Plaintiff states that Godtland “told [the Band], if we could just get Stephan Jenkins to focus and finish one new song of lyrics, Rhino Records, wanted to release a greatest hits package in 2005, instead of in 2006 when contractual rights belonging to Rhino would vest and allow them to do so without additional permission from 3eb” and that the Band “lost a million dollar advance from that failure that Rhino would have paid 3eb in 2005 for the right to release a greatest hits record with additional new songs.” Defs.’ Objs. 11. As above, both statements are hearsay. The objection on this ground is sustained.

III. LEGAL STANDARD

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue of fact is genuine only if there is sufficient evidence for a reasonable jury to find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “The mere existence of a scintilla of evidence ... will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party].” Id. at 252, 106 S.Ct. 2505. At the summary judgment stage, evidence must be viewed in the light most favorable to the nonmoving party and all justifiable inferences are to be drawn in the nonmovant’s favor. See id. at 255,106 S.Ct. 2505.

Where the movant has the ultimate burden of proof at trial, it may prevail on a motion for summary judgment only if it affirmatively demonstrates that there is no genuine dispute as to every essential element of its claim. See C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir.2000). Once it has met the initial burden of showing the absence of any genuine dispute, the burden shifts to the opposing party to present “ ‘significant probative evidence tending to support its claim or defense.’ ” Id. (quoting Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. *10101991)). In contrast, where the nonmovant has the ultimate burden of proof, the movant may prevail on a motion for summary judgment simply by pointing to the nonmovant’s failure “to make a showing sufficient to establish the existence of an element essential to [the nonmovant’s] case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

IV. FACTUAL AND PROCEDURAL BACKGROUND

The following facts are viewed in Fredianelli’s favor. Nearly all are based on Fredianelli’s declaration except where it is barred by Defendants’ evidentiary objections. Where the declaration is silent as to an issue and does not rebut Defendants’ proffered evidence, such facts are considered undisputed.

A. Fredianelli’s Beginnings with Third Eye Blind

Plaintiff Anthony Fredianelli met Eric Godtland and Defendant Stephan Jenkins in early 1993, helping Jenkins form the band Third Eye Blind (“the Band”). Fredianelli Decl. ¶ 2. Godtland served as the Band’s manager and funded the Band’s startup costs. Id. From 1993 to 1994, Fredianelli traveled back and forth from Nevada, where he lived, to San Francisco, California, where the Band was based, to rehearse, record, write songs, and play gigs. Id. However, Jenkins eventually told Fredianelli that the Band was going to go forward with Kevin Cadogan as its guitar player. Id.

It is undisputed that, in or about 1996 to 1997, after Fredianelli was no longer in the Band, Jenkins formed three corporate entities: Third Eye Blind, Inc., which was to handle various financial aspects of the band including receipt of music royalties; Stephan Jenkins Productions, Inc., which was to handle the various expenses associated with recording and producing the recording of songs; and 3EB Touring, Inc., which was to handle the financial aspects of the Band’s touring and merchandise activities. Jenkins Deck, Docket No, 218-1, ¶ 7. It is undisputed that Jenkins was the sole shareholder of these corporations, as well as the president and chairman of their boards. Id.

In late 1999, Jenkins asked Fredianelli if he would consider touring with the Band as a utility musician. Fredianelli Deck ¶ 4; Jenkins Deck ¶ 8. Fredianelli became a “hired musician” of the Band in approximately January 2000, and considered himself an employee. Jenkins Deck Ex. A (Fredianelli Dep.), at 43:20-44:12. Once Fredianelli began rehearsing with the Band, the Band voted to fire Cadogan. Fredianelli Deck ¶ 5. Brad Hargreaves, drummer for the Band, recounted to the rest of the Band, including Fredianelli, how he let Cadogan know that he was being fired, citing the “3eb band agreement.” Id. Fredianelli was immediately promoted to lead guitarist of the band. Id. Cadogan subsequently sued the Band. See id. ¶ 6. As lead guitarist, Plaintiff earned $1750 per week with a $1000 weekly retainer for weeks when there was no work. Id.

At the time Fredianelli was hired by the Band, Arion Salazar, the Band’s bass player, Jenkins, and Godtland told him that he would have to “pay [his] dues” during a two-year “probationary period,” after which he would officially be a Band member like they were and participate as a full fledged member and co-owner of the Band. Id. ¶ 6; see Fredianelli Dep. 52:11-22. Salazar explained that “the band made big decisions together, like firing Kevin Cadogan for example, and that each member had an equal vote.” Fredianelli Deck ¶ 6.

B. The Agreement

In or around late 2002 or early 2003, Salazar told Fredianelli that “the band[’]s *1011agreement [“the Agreement”] was affirmed through the closing of the Cadogan litigation.” Fredianelli Decl. ¶ 8. Godtland confirmed this fact. Id. Salazar told Fredianelli that “he had a lawyer who was working out ‘vesting the shares’ of 3eb to the shareholders, i.e. the band members.” Id. Godtland told Fredianelli that the rest of the band agreed that Fredianelli “could begin being se[n]t all corporate and shareholder documentation from David Rawson, [the Band’s accountant,] which began, and [Fredianelli] was told by Eric Godtland was information no different from Stephan Jenkins (sic).” Id.; Rawson Decl., Docket No. 171-5, ¶ 5.

Subsequently, Godtland set up a meeting with Plaintiff “in or around early March of 2003, where he walked [Plaintiff] through his management agreement, and the interim agreement, going over his management agreement line by line, but also going over general dynamics of the band[’]s two pass through corporations, that all members, including Stephan Jenkins, were employees of the corporations as well as owners and that [Plaintiff] in essence was agreeing to sharing the expenses of funding the business, which would include making records, to which [Plaintiff] would receive an equal share of proceeds.” Fredianelli Decl. ¶ 9. “Eric Go[d]tland, 3eb’s manager and representative to the outside world, told [Plaintiff] he had consulted with the band by conference call and that the points of [Godtland and Plaintiffs] conversation were approved by the band.” Id. Regarding the Band’s agreement, Godtland testified in the Godtland case that

[a]t each stage of band members, they agreed that they would take the shareholder agreements, sign them and distribute the shares. That happened while Cadogan was in the band, that happened again when Cadogan was out of the band with Arion, and that happened again when Tony joined.

What the band members said to each other with me there was that they were going to distribute these shares and they were going to sign off on these documents, and Stephan would distribute the shares to each of them.

Godtland Dep. 857:5-16.

Although Plaintiff alleges in his complaint that “[d]uring the Meeting, Plaintiff accepted the Band’s offer to become a full partner according to the terms of the Agreement, as that offer was conveyed to him by the Band’s manager and agent, Eric Godtland,” FAC ¶ 34,2 he did not testify to such in his declaration. Fredianelli submitted no admissible evidence that he accepted the Band’s offer.

Defendants have submitted a document produced by Plaintiff in this matter titled “Third Eye Blind Inter Party Agreements” (the “Agreement”), which is presumably the “interim agreement” referenced by Plaintiff. See Greenberg Decl. Ex. B. The Agreement consists of two *1012separate sections, titled “Business Structure (entities)” and “Employment Agreements.” Greenberg Decl. Ex. B. The Business Structure section provides that the Band members “shall be the sole owners in equal economic shares of any and all issued and outstanding shares of any corporation(s) or other business entities conducting business for or on behalf of the Group ... including but not limited to Third Eye Blind, Inc. and Third Eye Blind Touring, Inc.” Id. at 1. It then states that each member “shall have voting interests equal to their economic interests in the Corporation(s)” and requires majority approval “with respect to business and creative decisions of the Corporation(s) or the Group,” such as “approval of recording budgets.” Id. at 1-2. Towards the end of the Business Structure section, it states in handwriting that touring revenue will be split evenly, such that 25% goes to each of Salazar, Hargreaves, Fredianelli, and Jenkins. Id. at 5. It also provides that merchandise royalties would be divided such that 28% would go to Salazar, 19% to Hargreaves, 10% to Fredianelli, and 43% to Jenkins. Id.

The Employment Agreements section of the Agreement provides that each Band member is entitled to an “[ajmount equal to their respective Economic Interest in the net profits of the Corporation(s),” among other forms of compensation. Id. at 7-8. The Agreement contains different provisions for compensation following terminations based on whether the termination was “for cause” or without cause. See id. at 8-11.

C. Operation of Band Following Plaintiff Becoming a Member

In line with the Agreement, upon his becoming a full-fledged member of the Band, Plaintiff ceased receiving the weekly retainer he had received since joining the Band in 2000 and began to receive 25% of touring revenue. Fredianelli Dep. 54:25-55:11, 72:16-73:5. However, contrary to the Agreement and as admitted at his deposition in the Godtland case, Plaintiff did not begin to have a role in the decision-making process of the Band and did not have a say in business decisions, where to tour, legal matters, creative decisions, or what expenses to incur. Id. at 78:2-80:15. Rather, Jenkins “would make those decisions because he was the leader.” Id. at 80:5-8. In characterizing the decision-making structure of the Band, Plaintiff testified that it was not a “democracy.” Id. at 80:11-15. Rather, Jenkins told Plaintiff that Plaintiff “would have no role in the final decisions, in the decision making of the band.” Id. at 227:5-10. “[Jenkins] made an analogy as if he would be the United States and [the rest of the Band] would be smaller countries and he would — if he wanted to ask for advice, he would ask.” Id. at 227:11-14. “At the end of the day, he would reserve the right to make the decision and that that would not change.” Id. at 227:14-16. Plaintiff conceded that, although “[f]iring someone in a band is a big decision,” Jenkins had the authority to fire him. Id. at 244:2-8. Moreover, Plaintiff does not dispute that shares in the corporations conducting business for the Band were never distributed to Plaintiff or any member of the Band other than Jenkins. See Jenkins Decl. ¶ 7.

A February 23, 2008 email from Plaintiff to the Band’s business manager corroborates his testimony about the Band’s decision-making structure. See Rawson Decl. Ex. A. In the email, Plaintiff indicates that Jenkins, not the collective Band, was negotiating each Band member’s share of the touring income, writing that “SJ and I sat down and had a talk” regarding a new agreement as to touring income, that “Stephan [Jenkins] has this same plan in mind for Brad [Hargreaves] — but as of right now they don’t have an agreement,” that Plaintiff was “going to be asking Eric *1013[Godtland] — for a little bit of breathing room in regards to [Plaintiffs] management commission,” and that he did not “know what Stephan [Jenkins] has in mind for [Godtland] in general.” See id.

Furthermore, it is undisputed that contrary to the Agreement, Fredianelli did not initially share in the merchandising royalties. Rather, Jenkins took the net proceeds from merchandise sales, and only came to share such revenue four years later, in 2007, at which point Jenkins received 50% of net merchandise proceeds, Hargreaves received 35%, and Plaintiff received 15%, terms which were not consistent with the Agreement. Jenkins Decl. ¶ 14.

D. Changes Following Plaintiff Becoming a Band Member

Shortly after Plaintiffs March 2003 meeting with Godtland, Godtland arranged a band meeting in Miami where he explained to each Band member that, since the Band no longer had a record company, all expenses would be paid from the Band’s touring revenue, including non-touring expenses such as the Band’s recording expenses. Fredianelli Decl. ¶ 10. The Band agreed to the decision to pay non-touring expenses out of the net touring revenue. See id. ¶ 37.

From 2004 to 2007, Jenkins all but abandoned the Band. Id. ¶ 13. Plaintiff stepped into the void and took over the leadership role for the Band, engaging in a variety of marketing activities on behalf of the Band, such as building the Band’s first Myspace and Facebook pages as well as reaching out to the Band’s fanbase through the “Village Churchyard” website. Id,. ¶ 15.

In 2005, Jenkins changed Salazar’s share of the net touring revenue to less than 25%, with the remaining funds shared equally by Plaintiff, Jenkins, and Hargreaves. Jenkins Decl. ¶ 13. It is undisputed that, in June 2006, Salazar left the Band, and the remaining three musicians continued to share the net touring revenue equally, such that each member took home one-third of the net touring revenue. See Fredianelli Decl. ¶ 19; Jenkins Decl. ¶ 13; Rawson Decl. ¶ 11.

In or around early 2008, Jenkins replaced Godtland as manager for the Band. Fredianelli Decl. ¶¶ 20-22. In his first act as manager, Jenkins approached Fredianelli in January 2008 about reducing his share of the touring revenue back to 25%. Id. ¶ 22; Jenkins Decl. ¶ 13; Fredianelli Dep. 123:12-125:14. Fredianelli told Jenkins that he “would tentatively agree to making this one change to the deal [they] had in place, but told him strictly that it would be the only point [Fredianelli] would be willing to negotiate upon.” Fredianelli Decl. ¶ 22. Plaintiff told Jenkins he would make that one concession “contingent on [his] income not going down” from the $292,000 he earned touring in 2007. Id.

E. Godtland Litigation and Plaintiff’s Termination from the Band

Following Godtland’s ouster as manager for the Band, Jenkins wished to sue him. Id. ¶ 23. Jenkins threatened that if Plaintiff and Hargreaves “did not agree to sue Godtland, Jenkins would pursue other projects, leaving the band without a lead singer and mak[ing] it impossible for 3eb to deliver the new album Jenkins had been promising [Plaintiff], Hargreaves and Third Eye Blind fans for years.” Id. Jenkins indicated on several occasions “that he already was rich and did not need Third Eye Blind anymore, but that [Plaintiff] and Brad Hargreaves did, so [Plaintiff] had better go along, as he had convinced Brad [Hargreaves] to do, or [Plaintiff and Hargreaves] would lose everything.” Id. Ultimately, the Band decided to proceed with the litigation against Godtland. Id. *1014In his deposition, Plaintiff testified he had no say in legal decisions of the band. Fredianelli Dep. 78:12-13; 79:9-21.

During the course of the Godtland litigation, Plaintiff gave a deposition in. March 2009, in which he testified that he had never seen a management contract with Godtland and that he had effectively no control over the Band. Fredianelli Decl. ¶ 40; Fredianelli Dep. 77:22-80:15. Approximately nine months later, in December 2009, he contacted Godtland to apologize about his testimony and expressed a desire to make changes to his deposition. Fredianelli Decl. ¶ 42. About a week after Plaintiffs conversation with Godtland, Plaintiff perceived that Jenkins was angry with him for the recantation of his deposition testimony. Id. ¶ 44. Plaintiff played his last show with the Band on December 31, 2009, after which he was effectively frozen out of the Band. Id. He was never formally terminated for cause or any other reason. Id.

F. Intellectual Property Dispute

In early 2009, Jenkins sent Plaintiff an email with a proposal for publishing splits. Fredianelli Decl. ¶ 25. Fredianelli pointed out to Jenkins and Tim Mandelbaum, the Band’s attorney, that he did not agree with the split suggestions, as the splits were too low and Jenkins neglected to include four songs for which Plaintiff was clearly an author. Id. The Band released a digital EP titled “Red Star” in November 2008 and a full-length album titled “Ursa Major” in August 2009, for which Plaintiff authored or co-authored many of the new songs. Id. ¶26. Yet, Jenkins and Mandelbaum failed to credit Plaintiff for those works. Id. ¶ 26. Plaintiff never assigned any of his share of Third Eye Blind song rights or his share of the masters to Jenkins or any third party, yet Jenkins registered them in the Band’s corporations. Id. ¶ 29. Plaintiff eventually hired an attorney, Howard King, to work on his splits. Id. ¶ 33. King resolved the splits dispute in June 2010. Id.

Despite the resolution of the dispute over publishing splits, Plaintiff asserts that he is owed revenue from several other sources, including: a deal with Megaforce MRI involving $1 million in advances of which Plaintiff would receive one-third; $1 million in sales from the Megaforce deal from which Plaintiff should have received his royalties; Plaintiffs song “Can You Take Me” being used in the video game “Guitar Hero V”; “synch revenue”; ring-tones; and royalties from the sale of a live record to which Plaintiff contributed. Id. ¶¶ 33-34, 46.

Y. DISCUSSION

A. Breach of Contract (First Cause of Action)

This cause of action involves two separate legal theories: (1) that there existed an express contract between the parties conferring on Plaintiff co-ownership of the Band; and (2) that the parties’ course of conduct evidenced an intent for Plaintiff to be a partner even absent an express partnership agreement. In addition, Plaintiff argued, but did not plead in his complaint, that Defendants breached a profit-sharing agreement with him, regardless of his status as a co-owner of the Band.

1. Express Contract

First, Defendants dispute Plaintiffs allegation that he entered an express contract, the Agreement, to become a co-owner of the Band. While both parties use the term “partner” and “partnership” throughout their briefs, this terminology appears to be inapposite with respect to the Agreement; the Agreement, as produced by Defendants, contemplates that Plaintiff will be a shareholder in “any corporation(s) or other business entities conducting business for *1015or on behalf of the Group.... ” Greenberg Decl., Docket No. 171-3, Ex. B.

a. Statement of Law

To prevail on his breach of contract claim, Plaintiff must prove (1) the existence of a contract, (2) Plaintiffs performance or excuse for non-performance, (3) Defendants’ breach of the contract, and (4) damage to Plaintiff resulting from such breach. See Acoustics, Inc. v. Trepte Constr. Co., 14 Cal.App.3d 887, 913, 92 Cal.Rptr. 723 (1971). Here, Defendants only contest the first element, arguing that Plaintiff cannot show the existence of a contract establishing him as a co-owner of the Band. See Defs.’ Mot., Docket No. 171, at 13-17. In order to show the existence of a contract, Plaintiff must produce evidence showing (1) “[pjarties capable of contracting”; (2) “[tjheir consent”; (3) “[a] lawful object”; and (4) “sufficient cause or consideration.” Cal. Civ. Code § 1550.

Here, the lawfulness of the object of the Agreement and consideration are not at issue. Rather, the dispute centers on whether Jenkins and the other Band members mutually consented to be bound by the Agreement or, if not, if Godtland had the authority to bind them to the terms of the Agreement.

b. Consent of Band Members

Plaintiffs declaration and the attached excerpts of Godtland’s deposition in the Godtland case identify only four instances where the Agreement came up among the other Band members: (1) when Hargreaves cited the “3eb band agreement” after the Band terminated Cadogan; (2) when Salazar, Jenkins, and Godtland told Plaintiff when he was hired by the Band in 2000 that, after a two-year probationary period, Plaintiff would officially be a full fledged Band member and co-owner of the Band; (3) when Salazar told Plaintiff that the Band’s agreement “was affirmed through the closing of the Cadogan litigation” and that “he had a lawyer who was working out ‘vesting the shares’ of 3eb to the shareholders, i.e. the band members,” and Godtland confirmed this fact; and (4) when the Band “agreed that they would take the shareholder agreements, sign them and distribute the shares.” See Fredianelli Decl. ¶¶ 6, 8; Godtland Dep. at 857:5-16. In addition, the written Agreement submitted by Defendants is itself potential evidence of the existence of a contract. See Greenberg Decl. Ex. B.

The first and third instances are not offers; they evidence no consent by the Band members to enter into a current agreement with Plaintiff. To the extent the third instance refers to an agreement being “affirmed,” the statement is ambiguous: it does not indicate what the agreement is, what is meant by its affirmation, who affirmed it, or whether Plaintiffs inclusion in the agreement was part of the affirmation. Moreover, these conversations with Salazar occurred before Fredianelli was made a member of the Band, suggesting that any agreement that he be a co-owner of the Band could not have been in effect at that time.

The second instance, on the other hand, is, at best, an agreement to enter into a contract two years in the future. In California, the statute of frauds requires that “[a]n agreement that by its terms is not to be performed within a year from the making thereof’ be reduced to writing. Cal. Civ. Code § 1624. Here, the promise to make Plaintiff a co-owner after a two year probationary period would thus be subject to the statute of frauds, as there is no way in which it could be performed in less than a year. Plaintiff has not produced any writing indicating this promise, and thus it could not serve to create a contract. Cf. 1 Witkin, Summary 10th (2005) Contracts, § 366 (a conditional contract must be one potentially performed within one year).

*1016As for the fourth instance based on Godtland’s testimony that the Band intended to sign the shareholder agreements and distribute the shares that testimony is inadmissible hearsay. Even if it were admitted to show an intent of the Band members to sign a shareholder agreement and distribute the shares in the future, “an agreement that parties will, in the future, make such contract as they may then agree upon amounts to nothing.” Kerr Glass Mfg. Corp. v. Elizabeth Arden Sales Corp., 61 Cal.App.2d 55, 56, 141 P.2d 938 (1943). There is no evidence that the parties had agreed on specific terms for this future agreement. The general rule in California is “that where any of the essential elements of a promise are reserved for the future agreement of both parties, no legal obligation arises ‘until such future agreement is made.’ ” Copeland v. Baskin Robbins U.S.A., 96 Cal.App.4th 1251, 1256, 117 Cal.Rptr.2d 875 (2002) (quoting City of Los Angeles v. Super. Ct., 51 Cal.2d 423, 433, 333 P.2d 745 (1959)).

The uncertainty here is underscored by the fact that, even if Godtland was referring to the draft written Agreement described above, it is unclear which version of the Agreement Godtland was referring to when he indicated that the Band intended to sign the shareholder agreements and distribute the shares. As is evident from the face of the Agreement (and as testified to by Jenkins), it was subject to a number of revisions to key elements over time, such as the merchandising splits, sponsorship splits, and decision-making structure. Jenkins Decl. ¶ 11; Greenberg Decl. Ex. B. Thus, Godtland’s representation that the Band intended to sign the shareholder agreements simply indicates that they intended to sign an agreement in the future, which agreement in fact was never signed. The terms of the agreement, as testified to by Godtland, even if that testimony was admissible, are insufficiently definite to create a binding contract.

Even if the Court were to consider the terms of the written Agreement submitted by Defendants sufficiently definite to form the basis of a contractual obligation, Plaintiffs own evidence suggests that the parties did not intend for the Agreement to be effective until signed. As represented by Plaintiff, Godtland testified that the Band “agreed that they would take the shareholder agreements, sign them and distribute the shares” and that “they were going to distribute these shares and they were going to sign off on these documents, and Stephan [Jenkins] would distribute the shares to each of them.” Godtland Dep. 857:5-16 (emphasis added). If anything, this testimony indicates the Band’s intent that the Agreement not be in effect until signed, as Godtland repeatedly testified to the Band’s intent to sign the Agreement.3 “[W]here it is part of the understanding between the parties that the terms of their contract are to be reduced to writing and signed by the parties, the assent to its terms must be evidenced in the manner agreed upon or it does not become a bind*1017ing or completed contract.” Beck v. Am. Health Group Internat’l, 211 Cal.App.3d 1555, 1562, 260 Cal.Rptr. 237 (1989). It is undisputed that no written agreement was ever signed by Plaintiff and the other band members.

Of course, parties may enter into an agreement without a written agreement. For example, in Columbia Pictures Corp. v. De Toth, 87 Cal.App.2d 620, 624, 197 P.2d 580 (1948), the court upheld an oral agreement when a film director and his agent held a meeting with a studio executive to negotiate a “term contract” governing the director’s employment by the studio for a period of time, at which meeting the agent indicated his client would sign the term contract upon termination of a preexisting agreement. The studio executive then repeated the terms of the term contract to the director and asked the director if he agreed, to which the director responded in the affirmative. Id. at 624-25, 197 P.2d 580. The three then shook hands and one of them said, “This is a deal.” Id. at 625, 197 P.2d 580. The director then said that he agreed to sign the term contract once his preexisting agreement terminated. Id. In upholding the oral agreement, the court noted that “when the respective parties orally agree upon all of the terms and conditions of an agreement with the mutual intention that it shall thereupon become binding, the mere fact that a formal written agreement to the same effect is to be prepared and signed does not alter the binding validity of the oral agreement.” Id. at 629, 197 P.2d 580.

Here, unlike in Columbia Pictures, Godtland’s testimony does not speak to whether or not the Band agreed to the specific terms of the Agreement. The facts and circumstances surrounding the Agreement suggest that the parties did not orally agree to be bound by its terms. See Banner Ent., Inc. v. Super. Ct. (Alchemy Filmworks, Inc.), 62 Cal.App.4th 348, 358, 72 Cal.Rptr.2d 598 (1998) (mutual intention of oral agreement determined from the surrounding facts and circumstances). First, the Band never signed the Agreement and never distributed shares. See Jenkins Deck ¶ 7; Greenberg Deck Ex. B. This was contrary not only to the written draft Agreement but Salazar’s putative statement to Plaintiff that a lawyer was working out the “vesting of shares” to the band shareholders. Second, from the outset, the Band for the most part did not follow the terms of the written draft Agreement: it did not follow the merchandising splits provided for in the Agreement (see Jenkins Deck ¶ 14; Greenberg Deck Ex. B), it did not provide Fredianelli any control over the Band as provided in the Agreement (see Fredianelli Dep. 78:2-80:15, 227:5-16, 244:2-8), and it only provided Fredianelli with a share of net touring revenues as opposed to net profits as provided for in the Agreement (see Green-berg Deck Ex. B at 7; Fredianelli Dep. 54:25-55:11, 72:16-73:5). In fact, the only term of the Agreement that the Band appears to have comported with was the handwritten touring revenue split.

In sum, there is no evidence the written Agreement was consented to by all parties. Nor was it executed in a manner suggesting its existence as a binding contract. Plaintiff has not met his burden of producing evidence from which a reasonable jury could conclude that the Band consented to be bound by the terms of the Agreement,

c. Agency Authority

If Plaintiffs reliance on Godtland’s representations regarding the Agreement were sufficient to create a contract, such reliance is problematic for another reason: Godtland did not have the authority to bind the Band to the Agreement’s terms. An agent may bind a principal to a contract if he has either actual or ostensible *1018authority to do so, or, if the agent is unauthorized to do so, the principal ratifies the agent’s unauthorized action. See Cal. Civ. Code §§ 2307, 2330.

i. Actual Authority

Actual authority “is such as a principal intentionally confers upon the agent, or intentionally, or by want of ordinary care, allows the agent to believe himself to possess.” Cal. Civ. Code § 2316. In other words, actual authority may be either express, whereby a principal gives it to an agent orally or by writing, or implied, whereby the conduct of the principal indicates an intent to confer actual authority or causes the agent to believe he possesses such authority. See 3 Witkin, Summary of Cal. Law (10th) Agency § 134. “[A] general manager ... may not, in the absence of express authority, contract to distribute to employees a portion of the profits of a business.... ” Howard v. Winton Co., 199 Cal. 374, 379, 249 P. 511 (1926). Similarly, a general manager does not have implied authority to sell the business. See London v. Zachary, 92 Cal. App.2d 654, 657, 207 P.2d 1067 (1949).

Here, Plaintiff has submitted no admissible evidence showing that Godtland had express authority to bind Jenkins or the Band to the Agreement with Plaintiff. While Plaintiff testifies in his declaration that Godtland told him “he had consulted with the band by conference call and that the points of [their] conversation were approved by the band,” this statement is inadmissible hearsay evidence for the point that the Band did in fact approve of Godtland entering the agreement on its behalf. Id. ¶ 9. Significantly, Plaintiff did not submit direct non-hearsay evidence from Godtland that he had actual authority. Moreover, Godtland could not have had implied authority to either enter into a profit-sharing agreement with Fredianelli or grant him an ownership stake in the Band, as general managers may not contract to distribute the profits of a business or sell a business absent express authority. See Howard, 199 Cal. at 379, 249 P. 511; London, 92 Cal.App.2d at 657, 207 P.2d 1067. Thus, Fredianelli has not set forth a claim based on Godtland’s actual authority to make him a co-owner of the Band.

ii. Ostensible Authority

Ostensible authority “is such as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess.” Cal. Civ. Code § 2317. In order for an agent to bind a principal to a contract based on the agent’s ostensible authority, (1) “[t]he person dealing with the agent must do so with belief in the agent’s authority and this belief must be a reasonable one”; (2) “such belief must be generated by some act or neglect of the principal sought to be charged”; and (3) “the third person in relying on the agent’s apparent authority must not be guilty of negligence.” Ass’d Creditors’ Agency v. Davis, 13 Cal.3d 374, 399, 118 Cal.Rptr. 772, 530 P.2d 1084 (1975).

As to the first factor, Plaintiff testifies in his declaration that Godtland told him “he had consulted with the band by conference call and that the points of [their] conversation were approved by the band.” Id. ¶ 9. Although this point of Fredianelli’s declaration is inadmissible to prove that the Band actually did approve of Godtland entering into the Agreement with Fredianelli on behalf of Jenkins or the Band, it is admissible for the limited purpose of establishing Plaintiffs belief that Godtland had that authority and suggests that Plaintiffs belief may have been reasonable.

On the other hand, Plaintiff has not submitted any admissible evidence that conduct of the principals — i.e., Jenkins or the Band — would lead him to believe that Godtland had the authority to bind them to *1019the Agreement. In fact, he testifies to the opposite, that Hargreaves told him that “Godtland ... did not have the authority to act unilaterally specifically when it came to changing any member[’]s financial position in the band.” Fredianelli Decl. ¶ 24. Although Salazar, Jenkins, and Godtland did tell Plaintiff that he would eventually become a full-fledged member and co-owner of the Band around the time that he began playing with them in 2000, they never indicated that Godtland would be the one to make that arrangement. See Fredianelli Decl. ¶ 6. In fact, Salazar said that “the band made big decisions together, like firing Kevin Cadogan for example.Id. Absent admissible evidence showing that other members of the Band led Plaintiff to believe that Godtland would have the authority to enter into the Agreement on their behalf, Plaintiff cannot demonstrate that Godtland had ostensible authority to do so.

iii. Ratification

Even if Godtland’s offering Plaintiff to enter the Agreement was unauthorized, Defendants may still be bound to it if they ratified the Agreement. “A ratification can be made ... where an oral authorization would suffice[ ] by accepting or retaining the benefit of the act, with notice thereof.” Cal. Civ. Code § 2310 (emphasis added). “[RJatification may be proved by circumstantial as well as direct evidence,” and “[a]nything which convincingly shows the intention of the principal to adopt or approve the act in question is sufficient.” StreetScenes v. ITC Entertainment Group, Inc., 103 Cal.App.4th 233, 242, 126 Cal.Rptr.2d 754 (2002) (quotation marks and citations omitted). On the other hand, ratification “may also be shown by implication,” meaning that, “where an agent is authorized to do an act, and he transcends his authority, it is the duty of the principal to repudiate the act as soon as he is fully informed of what has been thus done in his name, else he will be bound by the act as having ratified it by implication.” Id. (alterations, quotation marks, and citations omitted).

Here, Plaintiff does not submit any admissible evidence that the Band knew Godtland had presented Plaintiff with the Agreement. Moreover, circumstantial evidence suggests they did not have notice of Plaintiff being offered with and accepting the Agreement, as he was never treated in accordance with the Agreement, aside from his taking a twenty-five percent share of the net touring revenues. As admitted by Plaintiff in his deposition, once he became a member, he did not gain a role in the decision-making process of the Band, did not have a say in the Band’s business decisions, and did not have a say in the Band’s creative decisions, despite the Agreement’s explicit provision that “[m]ajority approval of the voting interests of the Corporation(s) will be required with respect to business and creative decisions of the Corporation(s) or the Group.... ” See Fredianelli Dep. 78:2-80:15; Green-berg Decl. Ex. B at 2. In addition, he did not take a share of the band’s merchandise proceeds until 2007, despite the Agreement’s statement that he would immediately take a ten percent share of such revenue. See Jenkins Decl. ¶ 14; Green-berg Decl. Ex. B at 5. Such treatment is inconsistent with any ratification theory and thus this argument in favor of contract formation fails, too.

Thus, no contract may be found based on Godtland’s putative role as agent.

2. Partnership

The parties devote the lion’s share of their briefing on Plaintiffs first cause of action to the question of whether or not Defendants created a partnership with Plaintiff by way of their conduct.4 *1020Under California law, “the association of two or more persons to carry on as coowners a business for profit forms a partnership, whether or not the persons intend to form a partnership.” Cal. Corp. Code § 16202(a). Whether a partnership exists depends primarily on the intention of the parties, determined from the terms of the parties’ agreement or from the surrounding circumstances. Greene v. Brooks, 235 Cal.App.2d 161, 165-66, 45 Cal.Rptr. 99 (1965). “It is immaterial if the parties do not designate their relationship as a partnership or if they do not know that they are partners, for intent may be implied from their acts.” In re Lona, 393 B.R. 1, 14 (Bankr.N.D.Cal.2008). “Ordinarily, the existence of an actual partnership is evidenced by the right of the respective parties to participate in the profits and losses of the business, the contribution by the partners of either money, property or services and some degree of participation by the partners in the management and control of the business.” Id.

“To participate to some extent in the management of a business is a primary element in partnership organization, and it is virtually essential to a determination that such a relationship existed.” Dickenson v. Samples, 104 Cal.App.2d 311, 315, 231 P.2d 530 (1951). However, where partners have designated a particular partner to manage the partnership, “the making of the agreement to relinquish control is itself an exercise of the requisite right to control.” Dills v. Delira Corp., 145 Cal. App.2d 124, 132, 302 P.2d 397 (1956) (emphasis in original).

Here, while some of the hallmarks of a partnership were present [e.g., sharing of profits), Plaintiff was effectively shut out of the Band’s decision-making process. Rather, Jenkins had the final say as to all creative and business decisions of the Band. See Fredianelli Dep. 78:2-80:15, 227:5-16, 244:2-8; cf. Rawson Decl. Ex. A. There is no evidence that Plaintiff relinquished any control he had in the Band or that Plaintiff ever took part in a decision that Jenkins did not favor.5

Aside from aspects of his own declaration and alleged deposition corrections prohibited by the sham affidavit rule,6 Plaintiff puts forth two admissible pieces of evidence supporting his claim he had some *1021control over the Band: (1) Jenkins’s deposition admission that he was not the only-person to make the decision to hire Mandlebaum as an attorney; and (2) Jenkins’s deposition admission that he made the decision to change the touring revenue split with Hargreaves “in consultation with” Plaintiff. Jenkins Dep. 133:2-11, 395:9-19. However, neither of these facts suggests that Plaintiff had any say in the final decision, nor has Plaintiff offered evidence suggesting that he did. Jenkins’s admission that he was not the only person to make the decision to hire Mandlebaum as an attorney does not, on its own, suggest that Plaintiff was involved in the decision to hire Mandlebaum, especially in light of Plaintiffs deposition testimony that he had no say in the Band’s legal matters. See Fredianelli Dep. 78:12-13, 79:9-21. That the decision to change the touring revenue split was made “in consultation with” Plaintiff does not imply that Plaintiff had the power to change the outcome. In fact, such a characterization comports with Plaintiffs deposition testimony that he “renegotiated” his touring split with Jenkins and that Jenkins had previously told Fredianelli “if he wanted to ask for advice, he would ask,” but “[a]t the end of the day, he would reserve the right to make the decision .... ” Fredianelli Dep. 123:24-124:8, 227:13-16. Obviously, a reduction of an employee’s compensation would involve some degree of consultation with the employee, even if just presented as a “take it or leave it” offer. However, just because an employee has the power to accept reduced compensation, negotiate for a different compensation, or leave his job, does not mean that the employee has power over the employer’s ultimate decision of what compensation to offer. Thus, there is no record evidence before the Court that Fredianelli ever had any control in a decision by the Band.

Several other facts cited by Plaintiff to support the existence of a partnership, such as sharing of net touring revenues, Plaintiffs participation as a party in the Godtland case, and Plaintiffs being referenced as a “member” and “officer” of the Band, are insufficient to give rise to a genuine issue of fact as to which Plaintiff was a partner.

First, as discussed above, it is undisputed that Plaintiff took between a quarter and a third of the Band’s net touring revenue from the time he was made a member in 2003 to the time he was ousted in 2009. See Fredianelli Dep. 54:25-55:11, 72:16-73:5, 123:12-125:14; Fredianelli Decl. ¶¶ 19, 22; Jenkins Decl. ¶ 13. Sharing of net touring revenues with Plaintiff is not inconsistent with Defendants’ assertion that Plaintiffs share of net touring revenues constituted wages for his employment with the Band, especially where Defendants support the contention by introducing testimony that the Band’s accountant made wage payments to Plaintiff, issued W-2 and 1099 tax forms for such payments, and never filed partnership tax returns or made partner draw payments. See Rawson Decl. ¶ 13; Jenkins Decl. ¶ 19; see also Cal. Corp. Code § 16202(c)(3)(B) (profit-sharing as form of wages does not create presumption of partnership). Moreover, Plaintiff did not share in the net merchandise proceeds until 2007, demonstrating that Plaintiff did not even participate in a full profit-sharing agreement, as would be expected of a co-owner of a business. Jenkins Decl. ¶ 14.

Second, the complaint in the Godtland case alleges that Plaintiff was a party to a contract with Godtland by which Godtland took a commission based, in part, on “the band members’ songwriting income” for, among other tasks, “us[ing] [his] best efforts to promote the band’s careers and efforts in the entertainment industry.” Compl., Jenkins v. Godtland, No. C-08-476453 (Cal.Super.Ct., San Francisco *1022County June 18, 2008) ¶¶ 14, 19-20 (emphasis added). While Plaintiff did take part as a party to the Godtland case, his participation was premised, at least in part, not on his being a partner in the ownership of the band, but on his allegedly being an individual party to a management contract with Godtland. See id. 7 Plaintiffs individual participation in such a contract comported with its covering “the band members’ songwriting income,” which would naturally vary for each member of the Band based on their individual contribution to the Band’s songwriting, as well as with Plaintiffs representation in an email that Godtland and Plaintiff had an individual agreement regarding Godtland’s management commission for Plaintiff. See id. ¶ 14; Rawson Decl. Ex. A; cf. Love v. The Mail on Sunday, 489 F.Supp.2d 1100, 1106-07 (C.D.Cal.2007) (recognizing that songwriting collaboration does not in and of itself create partnership and that each collaborator is individually entitled to royalties). Plaintiffs individual participation in the Godtland case also comports with the allegation therein that part of Godtland’s role as manager was to promote Plaintiffs career and efforts in the entertainment industry, giving rise to individual rights against Godtland.

Lastly, Plaintiff was at various times referred to as a “member” and “officer” of the Band. See, e.g., Fredianelli Deck ¶ 6 (“member”), Ex. G (“officer”). However, such designation does not necessarily make him a legal partner in the Band’s operation, especially in light of the evidence showing that Plaintiff had no effective control over the Band. Being a band “member” does not necessarily denote ownership. Cf. Bartels v. Birmingham, 332 U.S. 126, 127-28, 67 S.Ct. 1547, 91 L.Ed. 1947 (1947) (members of “name bands” are employees and leader is employer); Far Out Productions, Inc. v. Oskar, 247 F.3d 986, 998 (9th Cir.2001) (recognizing band members being hired as employees). Regarding Plaintiff being labeled an “officer” of the Band, there is only one document referring to him as such, a one page balance sheet under the header of 3EB Touring, Inc. See Fredianelli Deck Ex. G. This one document does not establish a genuine dispute as to whether Fredianelli was, in fact, an officer of the Band. However, even construing the evidence in the light most favorable to Plaintiff, his being an “officer” would not make him a “partner” in the Band in light of his undisputed lack of control over management of the band. Cf. GAB Bus. Servs., Inc. v. Lindsey & Newsom Claim Services, Inc., 83 Cal.App.4th 409, 420-21, 99 Cal.Rptr.2d 665 (2000) overturned on other grounds by Reeves v. Hanlon, 33 Cal.4th 1140, 1153-54, 17 Cal.Rptr.3d 289, 95 P.3d 513 (2004) (recognizing that corporations may have nominal officers without control over business). Plaintiff has not offered evidence from which the Court may reasonably infer a partnership existed between him and the Band members.

Thus, the Court GRANTS Defendants’ motion for summary judgment as to Plaintiffs first cause of action except to the extent it is based on his not receiving his full share of net touring revenues irrespective of ownership, as discussed below.

3. Profitr-Sharing Agreement

Interpreted in the light most favorable to Plaintiff, Defendants have made admis*1023sions that would support an action for breach of contract to the extent it relates to Plaintiffs right to a share of the net touring revenue. See Pl.’s Opp’n 5. Regardless of Plaintiffs status as a partner or employee, Jenkins admits that Plaintiff was entitled to at least 25% of the net touring revenue starting in 2003. Jenkins Decl. ¶ 13. Plaintiff claims he has not been fully paid. There is evidence from which it may be inferred that Plaintiff is owed moneys based on the agreement to pay him a share of net touring revenue. In his July 20, 2009 deposition in the Godtland case, Jenkins testified that the Band “moved up on this tour to a profitability somewhere in the estimate of about 52 percent — 51 or 52 percent....” Jenkins Dep. 243:6-8. Defendants produced a document in this litigation entitled “3EBT Earning 2008 — 2009” showing total tour earnings of $5,155,590 between March 2008 and August 2009. Fredianelli Decl. ¶ 57, Ex. F. If 52 percent of that sum was profit and Plaintiff was entitled to 25 percent of the profit, Plaintiff should have been paid $670,226.70 for his participation in the Band during that period. Yet, Plaintiff earned, at most, $353,957 during that period. See Rawson Decl. ¶ 9.

Defendants have not proffered an explanation for the nearly $320,000 difference yielded by this calculation. See Defs.’ Reply 13. In a case involving an alleged profit-sharing agreement, the burden of proof at summary judgment and at trial is on the party in control of financial records, in this case Defendants, to demonstrate the party claiming breach was paid accordingly. See Wolf, 107 Cal.App.4th at 35-36, 130 Cal.Rptr.2d 860.8 In Wolf, the court rejected a plaintiffs theory that a profit-sharing agreement created a fiduciary relationship, but held that, nevertheless, “in contingent compensation and other profit-sharing cases where essential financial records are in the exclusive control of the defendant who would benefit from any incompleteness, public policy is best served by shifting the burden of proof to the defendant, thereby imposing the risk of any incompleteness in the records on the party obligated to maintain them.” Id. at 35, 130 Cal.Rptr.2d 860. As such, breach of contract as to the agreement to pay net touring revenues for March 2008 to August 2009 is an appropriate cause of action.

Thus, the Court finds that a contractual obligation to pay a percentage of the net touring revenue exists, and permits Plaintiff to proceed with his breach of contract claim only to the extent it is based on his right to a share of the net touring revenue.

B. Reasonable Value of Services Performed (Second Cause of Action)

Plaintiffs second cause of action for reasonable value of services performed, also known as a “quantum meruit” claim, alleges that “[b]etween March 13, 2003 and December 31, 2009, Plaintiff was not paid the reasonable value of the services that he performed for the Band.” FAC ¶ 88. “To recover on a claim for the reasonable value of services under a quantum meruit theory, a plaintiff must establish both that he or she was acting pursuant to either an express or implied request for services from the defendant and that the services rendered were intended to and did benefit the defendant.” Ochs v. PacifiCare of Cal., 115 Cal.App.4th 782, *1024794, 9 Cal.Rptr.3d 734 (2004). “[I]t is well settled that there is no equitable basis for an implied-in-law promise to pay reasonable value when the parties have an actual agreement covering compensation.” Hedging Concepts, Inc. v. First Alliance Mortgage Co., 41 Cal.App.4th 1410, 1419, 49 Cal.Rptr.2d 191 (1996). However, courts have recognized quantum meruit claims where the actual agreement is not for a certain or readily ascertainable figure. See Chodos v. West Publ. Co., 292 F.3d 992, 1001-02 (9th Cir.2002). For example, in Chodos the court recognized a quantum meruit claim where the plaintiff, an author, wrote a treatise based on a contract with a publisher for fifteen percent of the revenues from sales, yet the defendant declined to publish the treatise. Id.

Here, the fact that the parties had an agreement as to Plaintiffs compensation is dispositive. There is no dispute that Plaintiff was entitled to either twenty-five percent or thirty-three percent of the net touring revenue at any given point between March 2003 and December 2009. See Jenkins Decl. ¶ 13; Fredianelli Decl. ¶22. Moreover, unlike in Chodos, where the damages were uncertain, here Plaintiff was entitled to a share of an ascertainable portion of profits. Thus, the Court need not reach a decision as to whether the monies ultimately paid Plaintiff were reasonable.9 Breach of contract rather than quantum meruit lies.

The Court GRANTS Defendants’ motion for summary judgment as to Plaintiffs second cause of action.

C. Constructive Trust (Third Cause of Action)

Plaintiffs third cause of action asserts that Jenkins breached a fiduciary duty owed Plaintiff by “causing substantial assets, revenues and profits belonging to the Band to be placed either in his own individual name or into corporations wholly owned by him” and “treating the aforesaid assets belonging to other Band members as his own personal property.” FAC ¶¶ 94-96. “A cause of action for constructive trust is not based on the establishment of a trust, but consists of fraud, breach of fiduciary duty or [anjother act which entitles the plaintiff to some relief.” Michaelian v. State Comp. Ins. Fund, 50 Cal. App.4th 1093, 1114, 58 Cal.Rptr.2d 133 (1996). Here, based on the language of the complaint, Plaintiffs third cause of action appears to seek the remedy of a constructive trust based on Jenkins’s alleged breach of a fiduciary duty. See FAC ¶¶ 94-96.

In order to state a claim for breach of fiduciary duty against Jenkins, Plaintiff must demonstrate the existence of a fiduciary relationship. See 1-800 Contacts, Inc. v. Steinberg, 107 Cal.App.4th 568, 592-93, 132 Cal.Rptr.2d 789 (2003). Here, as discussed above, Plaintiff has not demonstrated that he was made a co-owner of the Band or its related corporations, and thus Jenkins’s alleged status as a co-owner of the Band with Plaintiff does not give rise to a fiduciary duty.

However, Plaintiff asserts two alternative sources of Jenkins’s fiduciary duty towards Plaintiff: Jenkins’s serving as Plaintiffs manager and Plaintiffs right to a twenty-five percent share of net profits. See Pl.’s Opp’n 21-22. Plaintiff cites no admissible evidence supporting that Jenkins actually was Plaintiffs manager in an individual capacity. Rather, Jenkins managed the Band, and, as discussed above, Plaintiff was not a co-owner of the Band, *1025but rather an employee. See Fredianelli Decl. ¶20.10 As to Plaintiffs argument that Jenkins owed Plaintiff a fiduciary duty to the extent Plaintiff was entitled to a share of the Band’s profits, a contract for profit-sharing alone does not give rise to a fiduciary relationship. See Wolf v. Super. Ct., 107 Cal.App.4th 25, 34, 130 Cal. Rptr.2d 860 (2003).

Thus, the Court GRANTS Defendants’ motion for summary judgment as to Plaintiffs third cause of action for constructive trust.

D. Accounting (Fourth Cause of Action)

Plaintiffs fourth cause of action “seeks an[ ] accounting of the disposition of any and all moneys, property and assets that Defendants Jenkins and or Hargreaves wrongfully received or misappropriated from the Band during the period when Plaintiff was an equal co-owner.” FAC ¶ 101. “An action for an accounting ... is a proceeding in equity for the purpose of obtaining a judicial settlement of the accounts of the parties in which proceeding the court will adjudicate the amount due, administer full relief and render complete justice.... ” Verdier v. Super. Ct. in and for City & County of San Francisco, 88 Cal.App.2d 527, 530, 199 P.2d 325 (1948). “A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting.” Teselle v. McLaughlin, 173 Cal.App.4th 156, 179, 92 Cal.Rptr.3d 696 (2009). “[A] party to a profit-sharing agreement may have a right to an accounting, even absent a fiduciary relationship, when such a right is inherent in the nature of the contract itself.” Wolf, 107 Cal.App.4th at 34, 130 Cal.Rptr.2d 860.

As with his breach of contract cause of action, Plaintiffs complaint suffers the fatal flaw that the entire action for accounting is premised on him being an “equal co-owner” of the Band at some point. See FAC ¶ 101. As discussed above, Plaintiff was never an equal co-owner of the Band, and thus cannot have a right to an accounting, at least as pled. Plaintiff also asserts that Defendants have “unaccounted for royalties,” yet produces no admissible evidence of such royalties. See PL’s Opp’n 5, 22; Fredianelli Decl. ¶¶ 33-34. The only evidence cited by Plaintiff to support a claim for unaccounted for royalties consists of hearsay and conjecture. See Fredianelli Decl. ¶¶ 33-34. While Plaintiff asserts that a song he wrote was used in a video game but he “never received any advances or royalties from the licensing of the song,” he does not introduce any evidence that the licensing of the song generated any royalties in the first place. See Fredianelli Decl. ¶ 46. It is equally conceivable that the use of the song in a video game was purely promotional and designed to encourage record sales or promote the Band’s profile. Thus, Plaintiff has not produced sufficient evidence to entitle him to an accounting of royalties.

Like with his breach of contract action, Plaintiff has proffered at least some evidence that he was not paid his full share of the band’s net touring revenues. Without an accounting, there may be no way by which Plaintiff could determine whether he was entitled to additional compensation. See Wolf, 107 Cal.App.4th at 34, 130 Cal. Rptr.2d 860 (accounting appropriate where, without an accounting, there may be no way by which a party entitled to a share in profits could determine the amount of profits). Again, the burden of *1026proof would be on Defendants to demonstrate that Plaintiff was paid accordingly. See id. at 35-36,130 Cal.Rptr.2d 860.

As Plaintiff has neither demonstrated that he was as co-owner of the Band nor shown the existence of any unaccounted for royalties, the Court GRANTS Defendants’ motion for summary judgment as to his fourth cause of action, except to the extent it is based on his not receiving a full share of the Band’s net touring revenues, irrespective of ownership.

E. Declaratory Relief Regarding Ownership of Copyrights (Fifth Cause of Action)

In his fifth cause of action “regarding ownership of copyrights,” Plaintiff asserts that he “is an author and joint owner of certain songs (and copyrights therein)” for which “[o]ne or more of [the] Defendants is listed as the sole author,” and thus he “requests that the Court declare him to be an author of these works.” FAC ¶¶ 102-07. In response, Defendants have produced evidence showing that the parties already resolved any ownership dispute based on Plaintiffs authorship of the songs at issue. See Callazzo Decl. ¶¶ 3-6, 8, Ex. A; Jenkins Decl. ¶ 18. In response, Plaintiff has produced no evidence of an outstanding, bona fide copyright dispute, but rather asserts that the dispute is about ownership, not royalty amounts, despite the fact that evidence produced by Defendants directly addresses the matter of ownership as having been previously settled. See, e.g., Callazzo Deck Ex. A (email from Plaintiffs attorney “eonfirmfing] that Mr. Fredianelli owns and controls the following. ...”). Although the materials submitted by Defendants suggest that, as of 2010, there was a dispute as to the song “Carnival Barker,” Plaintiff has submitted no evidence or argument that he is entitled to ownership of that song. See Callazzo Deck ¶ 7, Ex. A. Lastly, Plaintiffs argument that he is entitled to unaccounted for royalties and touring participation monies is inapposite; this cause of action is about declaratory relief for ownership of songs. See Pl.’s Opp’n 22-23.

Thus, the Court GRANTS summary judgment as to Plaintiffs fifth cause of action.

F. Declaratory Relief Regarding Ownership of Trademarks (Sixth Cause of Action)

Plaintiffs sixth cause of action asserts that he is an author of the “Third Eye Blind” and “3EB” trademarks registered by Defendant Stephan Jenkins Productions, Inc. See FAC ¶¶ 108-113. “[A] person who remains continuously involved with the group and is in a position to control the quality of its services retains the right to use of the mark, even when that person is a manager rather than a performer.” Robi v. Reed, 173 F.3d 736, 740 (9th Cir.1999). Here, Plaintiff has produced no evidence showing continuous involvement in the Band. According to his own declaration, Plaintiff played with the Band under the name Third Eye Blind from 1993 to 1994, left the Band from 1994 to 1999, rejoined the Band from 1999 to 2009, and has not played with the Band since 2009. See Fredianelli Deck ¶¶ 2-5, 44. On the other hand, Jenkins has played under the name Third Eye Blind continuously since before 1993, while Hargreaves has played under the name Third Eye Blind continuously since 1995. See Jenkins Deck ¶¶ 2 — 3; Hargreaves Deck ¶2. Plaintiff admits that Jenkins “was the band leader.... ” Fredianelli Deck ¶ 39. Plaintiff has not submitted evidence sufficient to demonstrate either his continuous involvement with the Band or his ability to control the quality of its service.

The Court therefore GRANTS summary judgment as to his sixth cause of action.

*1027G. Alternative Relief

Plaintiff urges that, if the Court is inclined to grant Defendants’ motion for summary judgment, it grant him permission to amend his complaint to plead an additional cause of action for violation of California Labor Code section 2802 (“section 2802”) or permit Plaintiff to conduct additional discovery before ruling on Defendants’ motion. See Pl.’s Opp’n 24-25.

In support of a claim for relief under section 2802, Plaintiff states that portions of Plaintiffs participation in the Band’s net touring revenue were used to fund other expenses of the Band, including recording and legal expenses. See id. at 24. However, section 2802 provides that “[a]n employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.... ” Cal. Lab.Code § 2802 (emphasis added). Plaintiff has submitted no evidence of expenses he incurred while discharging his duties, much less any argument why such expenditures were necessary. Rather, he appears to be arguing that, since he was paid from net touring revenues, any expenditures out of those revenues would give rise to an indemnification claim under section 2802. However, this argument confuses a share of net revenues, to which Plaintiff was entitled, with a share of gross revenues, to which Plaintiff was not entitled. By definition, Plaintiffs compensation agreement for net revenues incorporated expenses.

Thus, the Court DENIES Plaintiffs request for leave to amend his complaint to add a section 2802 claim.

As for permitting Plaintiff to conduct more discovery, Plaintiff is correct that “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may ... allow time ... to take discovery____” See Fed. R.Civ.P. 56(d). However, in support of his argument, Plaintiffs declaration only states that “[o]ne of the reasons [he has] been abandoned by so many attorney[ ]s in this case has been their refusal to conduct adequate discovery.” See Fredianelli Deck ¶ 48; Pk’s Opp’n 24-25. He does not include compelling testimony for why he failed to take the depositions of Godtland and Salazar, who he claims would corroborate his testimony. See Fredianelli Deck ¶ 48.

Thus, Plaintiffs request for additional time to conduct discovery is DENIED.

However, as discussed above, the parties have produced sufficient evidence to suggest that an appropriate cause of action would lie for breach of contract or an accounting on the grounds that Plaintiff did not receive his full share of net touring revenues. See Bishop v. Kelley, 100 Cal. App.2d 775, 786, 224 P.2d 814 (1950) (action for accounting where calculation of net profits was in dispute); Thacker v. American Foundry, 78 Cal.App.2d 76, 84-85, 177 P.2d 322 (1947) (breach of contract claim where calculation of net profits was in dispute). Defendants would not suffer prejudice from Plaintiff being able to proceed with either claim, as they have been on notice that Plaintiff sought his share of the Band’s net touring revenues, given his complaint’s repeated references to not receiving his full share of the Band’s profits as well as Jenkins’s and Hargreaves’s alleged misappropriation of the Band’s profits. See, e.g, FAC ¶¶77, 85B-C, 90-91, 95,101.

Thus, as discussed above the Court permits Plaintiff to proceed with his causes of action for breach of contract and accounting based on Defendants’ failure to pay his full share of the Band’s net touring revenue.

*1028VI. CONCLUSION

In sum, the Court GRANTS Defendants’ motion for summary judgment as to all of Plaintiffs causes of action permits except to the extent his causes of action for breach of contract and accounting are based on his not receiving his agreed-to share of net touring revenues.

This order disposes of Docket No. 171.

IT IS SO ORDERED.

HOWARD, Judge.

This appeal arises out of an action for divorce filed by Bertha Myrland, appellee, wherein she alleged that the parties had no community property and sought an order determining that all real and personal property in dispute which was in her name only, was her sole and separate property.

In his answer and two-count counterclaim the defendant-appellant alleged that the parties had substantial community property and common income in excess of $1,250 per month which was under the control of the plaintiff; that the parties had entered into a partnership in 1942; and that the assets acquired by the plaintiff were assets of the partnership acquired prior to the parties’ marriage in 1952 and were community assets acquired by them after marriage in continuation of the partnership.

Otto Myrland appeals from that portion of the judgment decreeing certain property to be the sole and separate property of the appellee and awarding him the net amount of $937.43 together with interest as his share of the community property.1 He also attacks the trial court’s findings and conclusions that he failed to sustain his burden of proving a partnership agreement and that no such agreement of partnership was entered into.

The action was tried to the court, sitting without a jury, and required four days of trial due to the complex fact situation involved. The salient facts, viewed in a light favorable to the judgment, are as follows: In 1941, appellee, then Bertha Lester, was a widow with three minor children. She owned and operated a business known as the Rio Rita Bar, which she had inherited from her husband, on leased property located on East Speedway and *500•Tucson Boulevard in Tucson, Arizona. At that time appellant, a disbarred lawyer, was married to Imogene Myrland. The parties became acquainted during 1941 and in 1942, Mr. Myrland began to work as a bartender at Mrs. Lester’s bar. He also supervised a program of remodeling the premises in order to improve the business. This included moving toilets to the interior of the building, placing a window in front of the building, changing the lighting, and making some other improvements, which were all paid for by Mrs. Lester. Both parties devoted their entire working time to the operation of the bar business on a daily basis from 1942 through July 31, 1947, when the lease expired. At that time the landlord wanted a substantial increase in rent and Mrs. Lester permanently closed the business.

Mr. Myrland’s testimony concerning the foregoing period was that on or about May, 1942, the parties entered into an agreement to jointly operate the Rio Rita Bar for profit. Mrs. Myrland’s testimony was that at all times Mr. Myrland was an employee and was paid in cash on an hourly basis. No written agreement was produced.

In 1947, at Mrs. Lester’s request, Mr. Myrland established his residence in Mrs. Lester’s home and did not pay for meals or rent. During the same year, Mrs. Lester purchased a vacant lot in her own name at Speedway and Dodge Boulevard in Tucson. A building was constructed on the lot for the operation of a new bar business, also to be known as the Rio Rita Bar. The lot •cost $8,750 and the construction and bar furnishings cost approximately $23,000. Of this sum; $24,750 was derived from the earnings of the old Rio Rita Bar and $7,000 was in the form of a loan from the Valley National Bank, which was secured by a mortgage on Mrs. Lester’s home, her separate property.

The appellant assisted Mrs. Lester at every step in the establishment of the new Rio Rita Bar. He worked with the real estate broker, the architect, and the workmen involved in the construction of the new building. Prior to opening, both parties went to Los Angeles to purchase furniture and fixtures for the bar from a hotel supply company which paid their travel expenses.

The new Rio Rita Bar at Speedway and Dodge Boulevard was opened for business on December 24, 1947, and both parties operated it. The Number 6 liquor license remained in Mrs. Lester’s name.

On July 31, 1948, Mrs. Lester sold the Rio Rita Bar and the premises were leased for a rental of $400 a month. From that time until June, 1949, the parties had no business, were not engaged in any moneymaking operations, continued to live together at appellee’s home and sustained themselves from the proceeds of the sale of the Rio Rita and the rental income from the bar property.

In June, 1949, the parties began negotiations to purchase property located at Jaynes Station, Tucson, known as Johnny’s Outpost, which consisted of two and one-half acres of land, a pump, a well, a building in which a bar business known as Johnny’s Outpost was being conducted, a one-bedroom house, a cafe, a service station and an unfinished cement block building.

The property was purchased in Mrs. Lester’s name for approximately $50,000. The sale was consummated on July 1, 1949, and Mr. Myrland established a temporary residence at Jaynes Station. Both parties commenced operation of the bar business in the same manner as they had operated the Rio Rita Bar and devoted substantially all their time to its operation.

In 1951, the State of Arizona initiated the first of two condemnation actions on a portion of the Jaynes Station-property for construction of the Interstate Highway from Tucson to Phoenix. Settlement negotiations failed and the matter went to trial. Mrs. Lester was represented by her son, Ralph Lester, an attorney, and since she was out of state at the time, Mr. Myr-land testified as to damages. Appellee received an award of $15,000 plus interest of *501approximately $2,000. The $17,000 was applied to the mortgage on the property and the liquidation of a note.

The new highway was located at the rear of Johnny’s Outpost and Mr. Myrland remodeled the building so as to place the front entrance where the rear of the building had been.

In June, 1952, Mr. Myrland obtained a divorce from his wife and on July 29, 1952, he and appellee were married in New Mexico. After the marriage there was no substantial change in the manner in which the Outpost business was conducted or in the manner in which the parties lived in appellee’s home.

The Outpost Bar was operated by them until it was sold in August, 1953. Appellee also leased part of the property and in one lease to the Standard Oil Company appellant executed a disclaimer to that portion of the property. In 1966, the State initiated a second condemnation action. Appel-lee received approximately $42,000 as damages and interest of $9,000. In addition, she was receiving the following rental income: $300 a month from the Outpost Bar; $112.50 a month from American Oil Company; $150 a month minimum from Standard Oil; and $500 per month from the Rio Rita Bar.

From 1953 when the Outpost Bar was sold, until August 19, 1969, the date appel-lee filed her complaint for divorce, the parties maintained themselves from the rents derived from the properties in appel-lee’s name. Their home and two adjacent lots remained in the name Bertha Lester, as did the Rio Rita Bar property and Jaynes Station, and all of these properties were acquired by appellee prior to her marriage to appellant in July, 1952.

Appellee maintained several bank accounts over which she exercised almost total and complete dominion. In 1949, she opened a trust account at Tucson Federal Savings for her daughter in the amount of $11,183.27. In December, 1953, she opened trust accounts for her sons, one for $9,844.62 and the other for $9,875.32. In November, 1966, Mrs. Myrland opened a joint savings account with $10,000 from the second condemnation award and transferred the funds into her name only on August 18, 1969, the day after an altercation between the parties and one day prior to filing her complaint for divorce. Mrs. Myrland also maintained two accounts in Southern Arizona Bank, both solely in her name. She also banked at the Valley National Bank, and only one certificate of deposit, in the amount of $3,000 was a joint account. The account became inactive, matured and was transferred to a certificate in the name of Mrs. Myrland. It was kept in her safe deposit box, to which Mr. Myrland had no access. Of an approximate $82,299.94 in various banks, only a total of $15,149.51 had ever been in joint accounts with appellant. Mr. Myrland testified that the only time he was permitted to sign checks was during a short period while Mrs. Myrland was in the hospital. He also testified that Mrs. Myrland handled all income, the condemnation awards, and he did not know exactly what she did with the money or how she had invested it. He never asked her for an accounting.

This case presents two primary issues on appeal: (1) Whether or not during the years prior to their marriage, the parties entered into an agreement whereby Mr. Myrland was to be a partner with appellee so that he acquired an interest in' her property; (2) whether or not the property acquired in appellee’s name prior to her marriage to Mr. Myrland and the cash accretions thereto in the seventeen years after the marriage is the sole and separate property of appellee or the community property of the parties.

THE PARTNERSHIP ISSUE

In his counterclaim Mr. Myrland asserted that prior to their marriage the parties entered into an agreement, the substance of which was that everything appellee owned was to belong to both of them.

Mrs. Myrland repeatedly denied the existence of any such agreement during direct *502examination and cross-examination. Her position was that not only had no oral agreement been entered into, but that the conduct of the parties, especially her complete control over all income, demonstrated that Mr. Myrland was, during their years of working together, an employee.

The trial court made three pertinent findings of fact on the partnership issue, which this court is compelled to uphold upon an examination of the record:

“4. Defendant asserts an interest in the property of plaintiff pursuant to an agreement of partnership which is alleged to have been entered into some time in the year 1942.

5. Defendant has failed to sustain the burden of proof as to the alleged partnership agreement.

6. No agreement of partnership was entered into between the parties.”

Mr. Myrland testified that one of the reasons for a lack of documentation as to a partnership agreement was that at the time he became associated with appellee he was a married man, and he wanted to be in a position, if interrogated under oath as to his property holdings, to deny ownership of property, thereby making his interest unavailable to his first wife.

In a further attempt to establish the existence of a partnership and to refute Mrs. Myrland-’s position that he had been an employee, Mr. Myrland showed the court that in all the years he worked with appellee, she did not withhold any social security or federal withholding taxes, and at no time listed him as an employee under Workmen’s Compensation, as she did for other “employees”. However, Mr. Myrland compounded the above in that for the years prior to marrying appellee, from 1942 through 1952, he never filed any income tax returns for himself or for the alleged partnership. As a former lawyer, Mr. Myrland was familiar with the obligation to report all income. Mrs. Myrland’s testimony is that she did not withhold taxes or list Otto as an- employee because “he didn’t want to.”

Mr. Myrland also pointed out that he had authority to go into the cash register at the Outpost and take advances on money due him, merely leaving “tickets” saying how much he took. He was able to do this, according to appellee, “whenever he felt like it.”

While the above facts and other too numerous to describe in detail, do not necessarily present the usual employer-employee relationship, one cannot make a leap from a special or unusual financial and social relationship and convert it into a legal partnership, where certain critical indicia are absent.

Although courts have encountered difficulty in setting forth exact tests by which to determine the existence or nonexistence of a partnership relation, in the last analysis the facts, circumstances, and most important, the intention of the parties control. Tripp v. Chubb, 69 Ariz. 31, 208 P.2d 312 (1949).

Lack of partnership documentation is not the critical factor as a partnership may be formed by an oral agreement. Johnson v. Hill, 1 Ariz.App. 290, 402 P.2d 225 (1965).

A.R.S. § 29-206 defines a partnership: “A partnership is an association of two or more persons to carry on as co-owners a business for profit.”

However, A.R.S. § 29-207 sets forth rules for determining the existence of partnership, including:

“4. The receipt by a person of a share of the profits of a business is pri-ma facie evidence that he is a partner in the business, but no such inference shall be drawn if such profits were received in payment:

* * * * * *

(b) As wages of an employee

There was sufficient evidence presented by Mrs. Myrland to refute the claim that the parties were “co-owners.” A participation in profits does not necessarily constitute the recipient a legally re*503sponsible partner, in the absence of such fundamental requisites as intention, co-ownership of the business, community of interest, and community of power in administration. 59 Am.Jur.2d Partnership §§ 43, 48 (1971).

The parties in the instant case had an unusual social and business relationship, but Mr. Myrland did not prove that it rose to the level of a true, legal partnership. At most, he was special employee because of his personal relationship with appellee and her reliance on his expertise in legal and business matters. Mrs. Myrland’s control over her property and income, her denial of a partnership agreement, and the secondary role Mr. Myrland played in relation to the control and authority over the property affirm the trial court’s conclusion that no partnership agreement was entered into between the parties, and hence Mr. Myrland acquired no interest in appellee’s property.

THE COMMUNITY PROPERTY ISSUE

Mr. Myrland proposes that he has an interest in the Rio Rita property acquired in 1947, the Outpost property acquired in 1949, and income derived from both businesses under a partnership theory prior to marriage, or under a community property theory after his marriage to Mrs. Myrland in 1952, by virtue of their joint and common efforts in the operation and enhancement of the properties. He alleges that the value of the common property increased because of his business judgment, management and work in the two business operations. He also alleges that there was extensive commingling of the joint or common property with community property, evidencing an intent that it was all community.

Mr. Myrland finally claims a one-half interest in all monies from the businesses which had, at one time or another, been deposited by Mrs. Myrland in joint accounts, citing the doctrine of O’Hair v. O’Hair, 16 Ariz.App. 565, 494 P.2d 765 (1972). The O’Hair decision was released by our Supreme Court a week before oral argument in the instant appeal. It held that the form of a bank account is not sufficient to establish the intent of the depositor to give another a joint interest in or ownership of the deposit, and it is the intention of the depositor which is controlling. O’Hair v. O’Hair, 109 Ariz. 236, 508 P.2d 66 (1973). We find the evidence to be that appellee did not intend to change the character of a portion of her sole and separate funds by temporarily placing them in joint accounts with appellant, and the joint custody of the accounts negatives any idea of a gift. Appellant, therefore, obtained no ownership of funds placed in joint accounts by appellee, over which she. maintained control, and which she placed in her sole name prior to the litigation below. As the creator of the bank accounts and the holder of the bank books, Mrs. Myrland was free to withdraw these funds, which had their source in her separate property, and to do with them as she chose. There was no showing that the joint accounts were commingled with community property and no showing that they were intended to be a gift to appellant.

The partnership issue has already been resolved in Mrs. Myrland’s favor, and we believe that the well-settled principles of community property law will resolve the above issues in Mrs. Myrland’s favor as well.

The basic principle here applicable is that the status or character of property is determined at the time of acquisition. In Arizona, property owned or acquired prior to marriage is separate property and does not become community property after marriage. A.R.S. § 25-213. It is possible for the separate character of such property to be altered after marriage by agreement, gift or commingling; however in the absence of such circumstances, it remains separate property after marriage. Lovin v. Woodward, 45 Ariz. 105, *50440 P.2d 102 (1935). Once the character of property as separate has been determined, it does not change except by agreement or operation of law, Porter v. Porter, 67 Ariz. 273, 195 P.2d 132 (1948), and it remains separate during marriage even though it may be sold and other property purchased with the proceeds. Nace v. Nace, 104 Ariz. 20, 448 P.2d 76 (1968).

In the instant case the trial court found as a fact and concluded that Mrs. Myrland acquired and owned as her sole and separate property the Rio Rita and Outpost properties. Both were purchased by her prior to her marriage to appellant in 1952 although appellant did work in the businesses since 1942. From 1942 until 1953 when the Outpost was sold, Mr. Myrland received a salary or income from appellee for his time and labor, and none of this income was ever commingled with income from the separate property or deposited in any joint account with Mrs. Myrland. Appellant’s salary and the rents, increases and profits from appellee’s properties were never commingled so that a transmutation occurred and it is clear that appellee’s property did not lose its separate identity so as to cast it into community property. Bourne v. Lord, 19 Ariz.App. 228, 506 P.2d 268 (1973) ; Guthrie v. Guthrie, 73 Ariz. 423, 242 P.2d 549 (1952).

That the value of appellee’s properties increased during the years that Mr. Myrland worked thereon also does not serve to change their character from separate to community. Mrs. Myrland devoted as much working time and labor to the operation of her businesses as did Mr. Myrland. Appellant received an income for his services and also received such benefits as housing, food, use of automobiles and vacations. That Mrs. Myrland supplied these benefits from separate property income-does not operate to change the status of the income’s source.

The trial court made a finding of fact that the “community property of the parties consists only of personal property in the form of cash or bank deposits and is in the amount of $4,874.85”, based on community income earned during the period from about July 29, 1952 to August 1, 1953 from the operation of the Outpost. As a conclusion of law the trial court awarded Mr. Myrland the sum of $2,437.43 less $1,500 in funds he had taken from appellee. It did not, however, make a specific finding that the savings accounts and stock in Mrs. Myrland’s name were her sole and separate property. Nevertheless, the purpose of Rule 52(a), to aid the appellate court by affording it an understanding of the ground or basis of the trial court’s decision, was met. Wright and Miller, 9 Federal Practice and Procedure § 2571 (1971).

For the purpose of appellate review there is implied in every judgment findings of fact in addition to express findings made by the court, necessary to sustain the judgment, where such additional findings are reasonably supported by the evidence and are not in conflict with the express findings. King Realty, Inc. v. Grantwood Cemeteries, Inc., 4 Ariz.App. 76, 471 P.2d 710 (1966) ; In re Holman’s Adoption, 80 Ariz. 201, 295 P.2d 372 (1956). The record demonstrates sufficient evidence to support a finding that the bank accounts were appellee’s separate property.

Judgment affirmed.

HATHAWAY, C. J., and KRUCKER, J., concur.

PabKee, J.

C. N. Stroud and Earl Freeman entered into a general partnership to sell groceries under the firm name of Stroud’s Food Center. There is nothing in the agreed statement of facts to indicate or suggest that Freeman’s power and authority as a general partner were in any way restricted or limited by the articles of partnership in respect to the ordinary and legitimate business of the partnership. Certainly, the purchase and sale of bread were ordinary and legitimate business of Stroud’s Food Center during its continuance as a going concern.

Several months prior to February 1956 Stroud advised plaintiff that he personally would not be responsible for any additional bread sold 'by plaintiff to Stroud’s Food Center. After such notice to plaintiff, it from 6 February 1956 to 25 February 1956, at the request of Freeman, sold and delivered bread in the amount of $171.04 to Stroud’s Food Center.

In Johnson v. Bernheim, 76 N.C. 139, this Court said: “A and B are general partners to do some given business; the partnership is, by operation of law, a power to each to 'bind the partnership in any manner legitimate to the business. If one partner go to a third person to buy an article on time for the partnership, the other partner cannot prevent it by writing to the third person not to sell to him on time; or, if one party attempt to buy for cash, the other has no right to require that it shall be on time. And what is true in regard *470to buying is true in regard to selling. What either partner does with a third person is binding on the partnership. It is otherwise where the partnership is not general, but is upon special terms, as that purchases and sales must be with and for cash. There the power to each is special, in regard to all dealings with third persons at least who have notice of the terms.” There is contrary authority: 68 C.J.S., Partnership, pp. 578-579. However, this text of C.J.S. does not mention the effect of the provisions of the Uniform Partnership Act.

The General Assembly of North Carolina in 1941 enacted a Uniform Partnership Act, which became effective 15 March 1941. G.S. Ch. 59, Partnership, Art. 2.

G.S. 59-39 is entitled PARTNER AGENT OF PARTNERSHIP AS TO PARTNERSHIP BUSINESS, and subsection (1) reads: “Every partner is an agent of the partnership for the purpose of its business, and the act of every partner, including the execution in the partnership name of any instrument, for apparently carrying on in the usual way the business of the partnership of which he is a member binds the partnership, unless the partner so acting has in fact no authority to act for the partnership in the particular matter, and the person with whom he is dealing has knowledge of the fact that he has no such authority.” G.S. 59-39(4) states: “No act of a partner in contravention of a restriction on authority shall bind the partnership to persons having knowledge of the restriction.”

G.S. 59-45 provides that “all partners are jointly and severally liable for the acts and obligations of the partnership.”

G.S. 59-48 is captioned RULES DETERMINING RIGHTS AND DUTIES OF PARTNERS. Subsection (e) thereof reads: “All partners have equal rights in the management and conduct of the partnership business.” Subsection (h) thereof is as follows: “Any difference arising as to ordinary matters connected with the partnership business may be decided by a majority of the partners; but no act in contravention of any agreement between the partners may be done rightfully without the consent of all the partners.”

Freeman as a general partner with Stroud, with no restrictions on his authority to act within the scope of the partnership business so far as the agreed statement of facts shows, had under the Uniform Partnership Act “equal rights in the management and conduct of the partnership business.” Under G.S. 59-48 (h) Stroud, his co-partner, could not restrict the power and authority of Freeman to buy bread for the partnership as a going concern, for such a purchase was an “ordinary matter connected with the partnership business,” for the purpose of its business and within its scope, because in the very nature of things Stroud was not, and could not be, a majority of the *471partners. Therefore, Freeman’s purchases of bread from plaintiff for Stroud’s Food Center as a going concern bound the partnership and his co-partner Stroud. The quoted provisions of our Uniform Partnership Act, in respect to the particular facts here, are in accord with the principle of law stated in Johnson v. Bernheim, supra; same case 86 N.C. 339.

In Crane on Partnership, 2nd Ed., p. 277, it is said: “In cases of an even division of the partners as to whether or not an act within the scope of the business should be done, of which disagreement a third person has knowledge, it seems that logically no restriction can be placed upon the power to act. The partnership being a going concern, activities within the scope of the business should not be limited, save by the expressed will of the majority deciding a disputed question; half of the members are not a majority.”

Sladen v. Lance, 151 N.C. 492, 66 S.E. 449, is distinguishable. That was a case where the terms of the partnership imposed special restrictions on the power of the partner who made the contract.

At the close of business on 25 February 1956 Stroud and Freeman by agreement dissolved the partnership. By their dissolution agreement all of the partnership assets, including cash on hand, bank deposits and all accounts receivable, with a few exceptions, were assigned to Stroud, who bound himself by such written dissolution agreement to liquidate the firm’s assets and discharge its liabilities. It would seem a fair inference from the agreed statement of facts that the partnership got the benefit of the bread sold and delivered by plaintiff to Stroud’s Food Center, at Freeman’s request, from 6 February 1956 to 25 February 1956. See Guano Co. v. Ball, 201 N.C. 534, 160 S.E. 769. But whether it did or not, Freeman’s acts, as stated above, bound the partnership and Stroud.

The judgment of the court below is

Affirmed.

RodmaN, J., dissents.