Albert v. Clairmont

Braley, J. The jury having found for the defendant on the second count of the declaration, the question for decision is whether the verdict for the plaintiff on- the first count can be sustained under the defence of the statute of frauds duly pleaded in the answer. The jury would have been warranted in finding that the plaintiff, who often had bought wood lots and cut and sold wood, became interested in a tract of woodland containing about ten acres situate in Pelham, New Hampshire, wMch was in the market for sale. But, being unable to pay the price, he entered into negotiations with the defendant which resulted in a mutual understanding and agreement that the defendant would advance the money, buy the lot, and the plaintiff should clear a portion, build a camp in co-operation with him, and cut the wood not exceeding a certain number of cords each month, and pay to the defendant a certain amount of the purchase price in two months, and the balance in four months, and that “they would divide the profits equally between them.” The defendant paid for and took title to the lot, and, shortly after, the plaintiff cleared a small part, did some planting, and with the defendant’s assistance built the camp for the use of the choppers. The parties each hired choppers and began to cut the wood, estimated at "four hundred cords;” but, after the plaintiff had cut and removed eight cords, the defendant “told him to keep off the land because he, the defendant, had sold it to some one else.” And, from the deed introduced in evidence, it appeared and the jury could find on the plaintiff’s testimony, that the defendant about a month after Ms agreement and before the plaintiff began to cut, had conveyed the title, and that the grantees thereafter cut and sold the wood. It is settled that, if the defendant at the time it was mutually agreed to share the profits of the enterprise had owned the lot, the contract would not be witMn the statute of frauds. Claflin v. Carpenter, 4 Met. 580. The defendant however had acquired 164 title when the parties entered upon the lot, and the independent stipulation that, if the wood was cut off, they were to divide the profits equally, can be enforced. Friend v. Pettingill, 116 Mass. 515, 517. Hurley v. Donovan, 182 Mass. 64, 65, 69. The contract being divisible, the requests were denied rightly, and the instructions to which the defendant excepted in terms of an attempted generalization, when read connectedly, accurately stated the law. Rand v. Mather, 11 Cush. 1, 7. Chace v. Gardner, 228 Mass. 533, 536. Exceptions overruled.