Bruce v. Hastings

The opinion of the court was delivered by WilsoN, J. This is an action of assumpsit to recover one half the profits which accrued from the purchase and sale of a farm, stock and produce. The defendant insists, first, that the action involves the settlement of partnership transactions, and should be account instead of assumpsit; second, that the contract is within the statute of frauds; and third, that the contract is without consideration. The first question is, whether the action of assumpsit will lie upon the agreement under which the plaintiff claims to recover. As a general rule, the action of assumpsit can not be sustained by one partner against his co-partner, in respect to any matter connected with the partnership transactions, or which involve the consideration of their partnership dealings. Chitty on Contracts, 269. But we think a partnership does not arise on the agreement which the evidence tends to show was made between' these parties. The defendant, in his own name and upon his own individual credit, bargained with Nelson for the property, but took no deed of it. The defendant sold the real estate to different parties, and Nelson, by direction of the defendant, deeded it directly to those parties. The most of the personal property was sold in Nelson’s name by direction of the defendant. It does , not appear that the title to the real estate ever vested in either of these parties. It would' seem that if the plaintiff acquired any interest in or title to the personal property, he held as a tenant in common with the defendant, and not as a partner. It was not [384] an agreement to put in capital and labor for the purpose of trade generally, but the agreement, as shown by the evidence, was limited to a single specific purchase by the defendant, with the understanding • that the property should be sold as soon as a purchaser or purchasers could be found, and that the defendant would give the plaintiff one half that should be made in the enterprise, in consideration of his agreement to aid and assist the defendant in carrying out his contract with Nelson. The form of the contract has very much the appearance of being a mode of determining the plaintiff’s compensation for the assistance which he contributed to the defendant in the purchase and sale of the property. But treating the parties as tenants in common, there can be no serious objection to adjusting the plaintiff’s claim in this form of action under the circumstances of the case. We have before remarked that the contract contemplated a single specific purchase of property and sale of it. It has been sold and disposed of according to the understanding and to the satisfaction of both parties. It was the duty of the defendant to pay Nelson the contract price for the property; he did pay him, and the defendant has in his hands nearly one thousand dollars, profits of the enterprise. Neither party had any right, under the agreement, to appropriate the profits of the enterprise for the purpose of further trade on their joint account. Their relation, as tenants in common of the specific property purchased, was at an end when the property was sold in pursuance of the agreement of the parties. If the defendant made such contract, as the testimony tends to show he did make, he is indebted to the plaintiff for one hálf the profits after deducting the expenses of selling the property. And the defendant is not holding the money as a credit to be balanced in whole or in part by other money or property received by the plaintiff from the enterprise. The adjustment of the plaintiff’s claim involves no accounting as to any matter or dealing except what relates to the specific property purchased and sold under the contract, from which the profits in question accrued. It is conceded by the defendant that the whole proceeds of the sales, including the profits, passed into his hands or were paid out for his benefit, and that the plaintiff has never received any part of the property, or avails [385] of it. Hence, tlie reason of tlie rule, that “ it would be useless for one tenant in common to recover what, upon taking a general account, lie might be liable to refund,” is not applicable to the facts of this case. We are agreed that the remedy may be as-sumpsit under the circumstances of this case. The next question is, whether the alleged agreement between these parties is within the statute of frauds. The agreement between the defendant and Nelson required the latter to convey the land to the defendant, or to convey it to the purchasers thereof under the direction of the defendant. Nelson did not convey to the defendant, but did convey the land to the parties who purchased it of the defendant, and the defendant received the money. The defendant did just wliat his agreement with the plaintiff contemplated he should do, that is, he converted the land into money, and this action is brought to recover the plaintiff’s share of it under the agreement. The action is not brought to recover damages for the breach of an executory contract for the purchase of land, nor for the purchase of an interest in land. In Trowbridge v. Wetherbee, 11 Allen, 361, the court held that a parol promise, to pay another a portion of the profits made by the promisor in a purchase of real estate, is not within the statute of frauds ; and, if founded on a sufficient consideration, will support an action. The only remaining question is, whether the alleged agreement is founded on a sufficient consideration. It appears that the plaintiff claimed, and gave testimony tending to prove, that he advanced money to the defendant to be paid to Nelson for the property, and that the plaintiff otherwise aided the defendant in the purchase and sale of the property, relying upon the defendant’s promise to give the plaintiff a portion of the profits as compensation for the assistance which he contributed to the defendant, as above staged. We are of opinion that the consideration is sufficient. The judgment of the county court is reversed, and the cause is remanded for trial.