Lecroy v. Wiggins

W AUNEN, J. — The charge refused by the court asserts, in effect, the following proposition : The plaintiff, having built the mill described in the contract, and discharged the duties devolved upon him by the contract, may recover the value of his labor on the mill at the time of the sale, if the defendant, making no reservation of the plaintiff’s rights under -the contract, sold the mill to Thomas, and the plaintiff, knowing of the sale, was only willing that defendant should make it, provided he (plaintiff) could have the same arrangement with Thomas which existed between him and the defendant, which arrangement Thomas refused to make. This charge assumes the existence of the contract; and there is no impropriety in the assumption, because an admission of it is implied from the pleadings. The charge makes the defendant’s liability result from a sale, when the plaintiff was willing to it only upon a certain condition which did not exist. 'Whether or not the liability does result from a sale under such circumstances, depends upon the question of plaintiff's right to sell without the consent of the defendant. The contract provides, that either party, wishing to sell “his interest,” shall give the other the “refusal of said interest, and, in the event they cannot agree, they will refer the matter to disinterested persons to arbitrate.” Erom this clause of the contract we understand, that the parties intended to reserve to themselves respectively a right to [18] sell tbeir respective “interests,” provided the party desiring to sell should first give to the other an opportunity to purchase, at a price upon which they might agree, or, if they could not agree, at a price which might be fixed by disinterested persons, chosen for that purpose. Under this stipulation of the contract, either party might sell, after having discharged his duty in affording the other an opportunity to purchase, of which he did not avail himself. It follows, that the defendant’s liability does not result from the mere absence of the plaintiff’s consent to the sale, nor from the breach of the condition upon which that consent was given. The proof that the plaintiff consented to the sale only upon the condition that he could make the same arrangement with the defendant’s vendee which he previously had with the defendant, and that plaintiff was unable to make that arrangement with such vendee, would be a successful reply to the plea that the plaintiff assented, but not to the other matters of defense. The charge asked also lays down, as a measure of the recovery, the value of the plaintiff’s “labor that was on the mill when sold.” The injury to the plaintiff by a sale, when he had been for some time receiving the benefit of the contract, was the value of the rights under the contract of which he was deprived by such sale. We do not think the plaintiff took by the contract an interest in the freehold of the land upon which the mill was situated. His interest was a mere right to such use of the mill, access to it, and occupation of it, during the continuance of the partnership, as were necessary to enable him to discharge the duties imposed, and to receive the benefits provided for him, by the contract. The defendant, who was the owner of the land upon which the mill was situated, had the power, by a sale of the land, to transfer the mill to the ownership of a third person. This sale and consequent transfer would necessarily terminate the partnership. The mill, the entire.subject-matter of the partnership, was gone by the sale. — See Collyer on Partnership, 100, § 115; Story on Partnership, 438, § 307. If the partnership was dissolved by the sale of the defendant in violation of his contract, the plaintiff loses all the bene [19] fit which, he would have derived from the partnership had it continued in pursuance to that contract. That benefit would have consisted in the receipt of one third of the toll, and “the privilege of ginning his cotton and threshing his grain toll free,” lessened by the value of the services of the plaintiff which would have been requisite “to keep the mill in good order” and “the machinery in good running order,” and estimated upon the supposition that no additional machinery would be added. This is the-measure of plaintiff’s damages, if he has any right to recover at all. The value of his “labor on the mill” at the time of the sale is not necessarily the same with the value of the benefits and privileges above described ; and therefore the charge was properly refused, on account of the incorrect measure of damages laid down in it. The court did not erf in excluding proof of defendant’s statement to the plaintiff', that if a sale was made to Thomas, he would make the same agreement with the plaintiff which existed between the parties to this suit. This proof might have been competent under an issue as to whether or not the plaintiff’s consent to the sale was fraudulently procured; but such is not the issue here. The defendant pleaded the plaintiff’s consent. The record does not show any replication to the plea, or any issue taken on it. We cannot intend that the plaintiff replied to the plea of consent fraud in its procurement. Unless we could aid the appellant, by making through judicial intendment a replication for him, we could not hold the testimony offered relevant. The defendant asked Thomas, his vendee, when testifying as a witness, “what interest he bought when he traded with the defendant.” The witness answered the question, stating that “he only bought the defendant’s interest.” The plaintiff objected generally to the question and the answer, and excepted to the overruling of the objections. If the evidence in this case had been merely illegal, because there existed written evidence of the same matter, it would have been necessary to have pointed out to the court the objection to it. The evidence was upon its face illegal, without reference to any extrinsic fact, [20] because it shows tbe character of a conveyance which the statute of frauds requires to be in writing. The rule is, that parol evidence is not admissible in reference to contracts within the statute of frauds. — 4 Phillipps on Ev. (2 part, C. & H’s notes,) 3 ed., 604, note 297. This evidence being prima-fade illegal, it was not necessary to specify the grounds of the objection, and the general objection was sufficient. — Cunningham v. Cochran & Estill, 18 Ala. 478; Davis v. State, 17 Ala. 415. Eor the error in the admission of this last named evidence, the judgment of the court below is reversed, and the cause remanded.