Bergh v. Sloan

Dickinson, J. This is an appeal by the defendant from an order refusing a new trial. The case of the plaintiff, as set forth in his complaint, and as presented at the trial, was, in brief, that these parties entered into an agreement, which he claims to have been of the nature of a partnership, for the purchase of a certain tract of land, it being agreed that the plaintiff should pay the purchase price, $4,000, and for the convenience of the parties take the title in his own name, but for the benefit of both parties; that they should bear equally the burden of taxation; that the defendant should pay to the plaintiff interest on one half of the purchase price paid; that, upon a sale of the property being made, they should share in the profits; that within three years the defendant would repay to plaintiff one half of the purchase money, with interest, if no sale should have been made; and that one half of the property should then be conveyed to him. The purchase was made, the title conveyed to the plaintiff, who paid the price as above indicated. The three years having passed, and the land remaining unsold, the plaintiff seeks by this action to recover one half of the purchase price paid by him, the defendant having refused to pay the same. The defendant denies that there was any partnership agreement, alleging that the plaintiff bought the property solely for himself, and that his (defendant’s) agreement, made after such purchase, was merely a verbal, and hence void, agreement on his part to purchase one half of the land from the plaintiff. The appellant contends that the evidence did not support the plaintiff’s claim as to the nature of the agreement. In this the apjiellant cannot be sustained. The evidence fully and beyond any [119] reasonable question justified tbe verdict in favor of tbe plaintiff so far as concerned the facts in issue. But it is said that the agreement, even according to the plaintiff’s proof of it, did not constitute a partnership agreement, and was void under the statute of frauds. This point is not available to the appellant. The court instructed the jury, in substance, that if the agreement was as claimed by the plain (iff, and if the property was purchased in accordance therewith, and the purchase price advanced by the plaintiff, as a joint enterprise and for their common profit, the plaintiff would be entitled to recover. No exception was taken to this as being the law of the case by which the jury should be guided in the discharge of their duty. The appellant must be deemed to have acquiesced in this statement of the law as applied to this case. The verdict was rightly founded upon that proposition, and a contrary theory of the case cannot now be advanced as a reason for avoiding the result of the trial. Smith v. Pearson, 44 Minn. 397, (46 N. W. Rep. 849;) Loudy v. Clarke, 45 Minn. 477, (48 N. W. Rep. 25;) Coburn v. Life Indem. & Invest. Co., 52 Minn. 424, (54 N. W. Rep. 373.) This controls the determination of this appeal. Order affirmed. Vanderburgh, J., did not participate. (Opinion published 54 N. W. Rep. 943.) Application for reargument denied May 9, 1893.