88 So. 667 | Ala. | 1921
The trial was had before the trial judge, without a jury, on testimony given ore tenus, and judgment was rendered for plaintiff. The assignment of error was "in rendering the judgment in behalf of the appellee in this case."
The trial court had the witnesses before it and the opportunity to observe their demeanor in testifying, and its finding of facts is equivalent to the verdict of a jury. Gray v. Handy,
Appellee and one Dyer each instituted separate suits against E. C. Christie for $250. Both suits are before this court for review from a judgment rendered in favor of the respective plaintiffs. The two separate appeals are predicated on like assignments of error. The respective cases were tried on count 1, in Code form, for money had and received by defendant for the use of plaintiff; and an amended count claiming that in, to wit, October, 1919, plaintiff and one Dyer and the defendant bought from Col. Mallory 125.2 acres of land in the county where said suits were brought. It was averred that the defendant paid the purchase price therefor, of $1,260, and took the title to the land "in his own name for convenience, and in order to save the expense of drafting other papers"; it being "further agreed between the said parties that the said land should thereafter be sold at a price satisfactory to them, and that the profits derived therefrom should be equally divided" between the said plaintiff, *572 one Dyer, and the defendant. It is further averred:
"That the said lands were sold with the consent and concurrence of said parties, to one J. H. Johnson, on, to wit, in the month of January, 1920, at and for the sum of $2,000 in cash, paid to the said defendant, and that a profit of $740 was realized from said sale; * * * that, although he [plaintiff] has complied with all provisions of the said contract on his part, the defendant has failed and refused to this date to pay over to the plaintiff his interest or share in said profits or any part thereof, wherefore this suit."
Demurrer being overruled to the counts as last amended, defendants pleaded in short by consent, the general issue, statute of frauds, no consideration, and failure of consideration.
When all the evidence is considered, it is apparent that the separate suits were not by partners for the recovery of partnership moneys, but were prosecuted by two parties jointly interested in the profits to be derived from the sale of lands (Saunders v. McDonough,
As to defendants' insistence that there was no consideration for the agreement, if it existed, it is sufficient to say that respective plaintiffs had a contractual property right with Col. Mallory which they surrendered to defendant and which had an actual monetary value capable of measurement at the time of the respective contracts in question. McCormick v. Badham,
It is further insisted that the contract relating to the sale of real property was not averred to have been in writing, and was subject to the statute of frauds. It is true that it is not shown by the evidence when the agreement relative to a resale of the property and a division of the profits between the parties was to be made, but it was capable of performance within a year, and the evidence shows that the conveyance of the property by Col. Mallory to defendant and its resale by the latter was within a year from the making of the contract on which the suit is based, and was not, therefore, within the statute of frauds. The statute applies only to those agreements which by their terms do not permit of performance — "not to be performed within one year from the making thereof." Derrick v. Brown,
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.