Coffin v. McIntosh

9 Utah 315 | Utah | 1893

BabtCH, J.:

The plaintiff in this case brought this action to recover a certain sum of money alleged to be due him from the defendant. He set up two causes of action for money had and received. The jury rendered a verdict in his favor for the sum of $750. The defendant then moved for a new trial, which motion having been overruled he appealed to this court. The controversy grew out of a real-estate transaction. The evidence shows that the defendant and one Armstrong had a piece of property, and the defendant made an offer to the plaintiff to the effect that if he would loan him $200 he would let him into the deal at cost. The plaintiff accepted this offer, loaned him the $200, and then put in $250, the defendant having furnished the same amount. By this arrangement the plaintiff was to have one-half of defendant’s interest, and was to have a contract for it. The plaintiff was also to pay one-half of the defendant’s share of the indebtedness against the property. The defendant, it appears, represented to the plaintiff that he had a contract for the interest of which the plaintiff was to have the the one-half. The property was after-wards sold at an advance in price, while the plaintiff was absent from the Territory, and the defendant received plaintiff’s share of the proceeds, but failed to turn it over to him upon demand.

At the trial counsel for the defendant moved to strike out the testimony of the plaintiff on the ground that it was shown thereby that the transaction was in relation to a piece of real estate, and, not being in writing, was within the statute of frauds; and also,* that the transaction related to a partnership which was unsettled, and was not subject to an action at law. The action of the court in overruling this motion raises the only material question in the case. This court, in Knauss v. Cahoon, 7 Utah, 182, 26 Pac. Rep. 295, held, under circumstances similar to those in this case, that the statute of frauds had no application. Especially is this so where, as in. this case, the statute is not pleaded. As to the question of partnership, we do not think the position of counsel for the defendant tenable. The land in question had been sold, the plaintiff’s share of the proceeds paid to the defendant, and there was nothing remaining to be done but for him to pay it over when demand was made for it. There appears to be no error in the ruling of the trial court. The judgment is affirmed.

Zahe, 0. J., and Smith, J., concurred.