Watters v. McGuigan

Cassoday, J. There can be no question but what, under the contract alleged and proved, the defendant acquired the absolute title to all the lands purchased and sold by him, [157] free from any trust in favor of the plaintiff. This would be so under the statute, even if the plaintiff’s services were to be regarded as a part of the consideration paid for the lands. R. S. sec. 2077; Week v. Bosworth, 61 Wis. 85; Cerney v. Pawlot, 66 Wis. 265; Skinner v. James, 69 Wis. 605; Campbell v. Campbell, 70 Wis. 315. The several objections and exceptions in the record are all based upon the theory that by the terms of the contract the plaintiff was to have an “estate or interest” of one fourth in the lands so purchased by the defendant, .and hence that the contract was void by the statute of frauds. R. S. sec. 2302. Of course, an agreement to thus acquire the title, and, when acquired, to convey one fourth thereof to the plaintiff, would have been for an “ estate or interest in lands,” and hence void under that statute. Dunphy v. Ryan, 116 U. S. 491. But the court, would not be justified in straining the terms of the contract so as to bring it within the statute, and thus do a great injustice to the plaintiff. On the contrary, it is well settled that “ where a contract is fairly open to two constructions, by one of which it would be lawful and the other unlawful, the former must be adopted.” Hobbs v. McLean, 117 U. S. 576; U. S. v. C. P. R. Co. 118 U. S. 236. So construed, we may very properly regard the agreement between the parties to have been, in effect, that the defendant would pay his brother Peter and the plaintiff, respectively, for their services in thus looking up and locating the lands, .an amount equal to one fourth of what he should sell the lands for. An action for such services is certainly maintainable. Tucker v. Grover, 60 Wis. 240; Schriber v. Le Clair, 66 Wis. 585; Treat v. Hiles, 68 Wis. 344. Such is really the nature of the contract alleged and proved and of this action. The compensation of the plaintiff for his services was to be one fourth of the proceeds of the sales. Such proceeds were referred to merely as a measure of the compensation. Under the contract there could be no question of profits or losses, [158] and hence no occasion for any accounting. It follows that there was no copartnership. See note to this case in 39 N. W. Rep. 383.— Rep. By the Gourt.— The judgment of the circuit court is affirmed.