Sands v. Thompson

Worden, J. This was an action by the appellee against the appellant and three others. The complaint was as follows: “William M. Thompson complains of Joseph Kelly, David Sands, George W. Barnes, and Edward W. Yarring [19] ton, and says that on the 24th of August, 1869, .Eunice Moffitt was the owner in fee of the following described real estate, to wit(Here follows a description of the' land alleged to have been owned by Eunice Moffitt.) “ That the defendants had entered into a partnership among themselves, for the purpose of buying, slaughtering, and packing hogs, and desired to have the above described property on which to erect buildings and carry on said business, and wished to purchase the same for that purpose, and were willing to pay therefor the sum of twenty-seven hundred dollars, being the value thereof; but they had doubts whether the said Eunice might not be dissuaded by the owners of adjacent property from selling said property to them to be used in the said business, if it were known that they desired to purchase it. Therefore it was agreed among the defendants, that they would procure the plaintiff to purchase said property for them, and, to avoid any suspicion as to their interest in the same, that he should have the conveyance made to himself, and should subsequently, on demand, convey the same to the defendants. The plaintiff was the owner in fee of lot 20 in Bickle and Law’s addition to the city of Richmond, Indiána, which, with the improvements thereon, was of the value of twenty-seven hundred dollars; and, further to avoid exciting any suspicion or inquiry as to the purpose of the plaintiff in buying said property, it was agreed between said defendants that the plaintiff should exchange his said property to the said Eunice for the property .first above described, and that the defendants, on the completion of said exchange, would pay the plaintiff the sum of twenty-seven hundred dollars, for the conveyance of his property to the said Eunice. These propositions and agreements were communicated to the plaintiff by the defendants, and he agreed to the same, and in pursuance thereof conveyed his said property to said Eunice, and in exchange therefor received of said Eunice a conveyance of her said real estate; said conveyance being executed on August 24th, 1869. Thereupon the plaintiff demanded of defendants the said sum of twenty20 seven hundred dollars, but the defendants declined to pay the same for the present, for the reasons following: It was proposed that said partnership be dissolved, said Sands/and Kelly proposing to buy the packing and slaughtering house of James McWhinney; and Barnes and Yarrington being unwilling to do so, Sands and Kelly entered into a partnership with Benjamin L. Martin, and made the purchase of McWhinney, and they, not then needing the Moffitt property, proposed that Barnes and Yarrington take it, which they were unwilling to do, unless they could get up another satisfactory firm; and failing in their efforts to do this, they declined to take the whole of said property. The plaintiff was requested by defendants not to execute any deed until it was ascertained whether these arrangements would be consummated, and if they were, they wished him to make the deed to the new firm, who would pay for the property. The plaintiff complied with the request of the defendants and waited on their action until the 2ist of March, 1870, when he executed and tendered a deed for said real estate first above described, to the defendants, and again demanded the twenty-seven hundred dollars, and the interest thereon due him, which deed is herewith filed for the use of the defendants, and marked ‘ Exhibit A.’ The defendants declined to accept said deed or pay said twenty-seven hundred dollars, which sum, with interest thereon from August 24th, 1869, is due to plaintiff and remains wholly unpaid; wherefore,” etc. Yarrington’s death was suggested pending the action. Barnes made default; Kelly and Sands demurred to the complaint for want of a statement of sufficient facts, but the demurrer was overruled, and they excepted. They then answered: 1. General denial. 2. That the contract was not reduced to writing. Demurrer to second paragraph sustained, and exception. Issue tried by the court; finding in favor of Kelly, but in favor of the plaintiff as against Sands. Motion by Sands for a new trial overruled, and exception. Final judgment for plaintiff against Sands and Barnes. [21] Barnes, in a note endorsed upon the transcript, declines to join in the appeal, and consents that his name be stricken from the record. The first question that is presented by the record and assignment of error arises upon the ruling below in overruling the demurrer to the complaint. If the contract set up therein is within the statute of frauds, and, therefore, not the foundation of an action unless reduced to writing, the complaint should have shown that it was thus reduced to writing. Harper v. Miller, 27 Ind. 277. Our present statute provides, that “no action shall be brought * * * upon any contract for the sale of lands; •* * * unless the promise, contract or agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized; excepting, however, leases not exceeding the term of three years.” 1 G. & H. 348, sec. 1. The substance of the agreement stated in the complaint, stripped of extraneous circumstances, is this: The defendants desiring to purchase the Moffitt property, for which they were willing to pay twenty-seven hundred dollars, and the plaintiff having property which he was willing to sell for that amount, it was agreed between the plaintiff and the defendants, that if the plaintiff would exchange his property for the Moffitt property and convey the latter to the defendants, they would pay him the twenty-seven hundred dollars. This, as it appears to us, is clearly a “ contract for the sale of lands,” and furnishes no foundation for an action, not having been executed in the manner required by the statute. It is claimed by the counsel for the appellee that he was acting as the agent of the defendants throughout the transaction. We are not of that opinion. He seems to us to have been acting for himself and for his own benefit. It is difficult to see how he could have been acting as the agent of the defendants when making a contract with them on his own behalf. He seems to have been willing to aid the [22] defendants in accomplishing their desire to acquire the Moffitt property, thereby effecting a sale of his own. If it was not commendable in the defendants to resort to the circuitous method adopted, of acquiring the Moffitt property, it was no more so in the plaintiff to aid them in doing so, though he thereby accomplished a purpose of his own. The circumstances, it would seem, should have suggested to the plaintiff the propriety of having his contract reduced to writing, in order that it might be enforced, if necessary, without any dispute as to its terms. The case is not one where there has been a complete performance on one side. The defendants have not accepted the deed. Had they done so, they would, doubtless, have been liable. Says Mr. Parsons: “ When a contract, originally within this clause of the statute, has been executed, and nothing remains to be done but payment of the consideration, this may be recovered notwithstanding the statute. But in such case the declaration should be framed, not upon the original contract, but upon the contract implied by law from the plaintiff’s performance.” 3 Pars. Con., 5 ed., p. 35. See, also, Fisher v. Wilson, 18 Ind. 133; Thomas v. Dickinson, 12 N. Y. 364. In the case last cited, Johnson, J., in delivering his opinion, says: “ When, therefore^ the last conveyance required by the contract was made, its execution and acceptance were equivalent to a re-adoption by the parties of the remaining unperformed terms of the original agreement. It thereby ceased to be a contract for the sale of lands or an interest in lands and became a mere agreement to pay for lands conveyed. As such it was not within the statute of frauds. A promise to pay for land conveyed is not within the-statute and needs not to be in writing.” The plaintiff, to be sure, tendered a deed for the property which he was to procure from Eunice Moffitt and convey to the defendants, but such tender does not entitle him to enforce the contract. Hadden v. Johnson, 7 Ind. 394. It is [23] the acceptance of the deed, in such case, that lays the foundation for liability. We are of opinion, therefore, that the court erred in overruling the demurrer to the complaint:' The judgment below, as to the appellant, is reversed, with costs, and the cause remanded.