Brown v. Slauson

Cole, J. Whether the property mentioned in the case could really be treated as the wife’s separate estate, having been derived from her husband in the manner it was : or whether, if it were her property, buying an interest in the vessel was incident to the proper disposition and enjoyment of her separate estate, are questions which need not be considered, since we' are satisfied that the alleged contract was void by the statute of frauds. To escape the force of this objection, it is claimed that the purchase of the bark was a joint purchase, made by the plaintiff and defendant together, and that they took possession of and owned the vessel as tenants in common. But the testimony fails to show that this was the contract. On the contrary, the husband, three or four times in his testimony, says, in [249] effect, that the agreement was that Slauson was to buy the vessel, pay the purchase-money, and take the title in his own name; and that he was to sell Mrs. Brown one-quarter of the vessel, she paying what she could down, and the balance to be paid out of the earnings; the husband to sail the vessel until she was paid for. This is the substance of the agreement as testified to by Brown. The contract of sale, then, was between the plaintiff and defendant. There was no money paid upon this contract. It is true, the husband went to Cleveland to inspect the vessel and negotiate with the owner for the purchase thereof. But he tells upon what terms he went. He was to furnish his time, and Slauson was to pay his expenses. This was for the purpose of looking up a vessel, and before any purchase whatever was made. But when the vessel was purchased, it was purchased by the defendant, who took possession by his agent, the husband, as master. And the husband continued to sail the vessel for the defendant, until he was discharged in August, 1866. The agreement undoubtedly was, that he was to sell Mrs. Brown a one-quarter interest upon the conditions named. But, upon the facts of this case, that agreement cannot be enforced. It is strictly within the statute of frauds. By the Oowrt. — The judgment of the circuit court is affirmed.