Fountain v. Menard, 53 Minn. 443

Fountain v. Menard

53 Minn. 443 | Minn. | 1893

Gilfillan, C. J.

The complaint in this action was so drawn as to suggest the question whether the plaintiff was proceeding on *445the theory of a partnership between the parties to deal in the real estate or of an attempt merely to create a trust in it. It does allege a partnership formed for the purpose; and, without an application to require the plaintiff to make the complaint more definite and certain, or to elect on which theory he would proceed, he had a right to prove any cause of action within the allegations of the complaint, and, as there were enough of them to show a case of partnership, the defendants’ motion for judgment on the pleadings was properly denied. From the evidence, though it also pointed to the two theories suggested by the complaint, the referee might fairly find that a partnership to buy, improve, and dispose of the real estate was formed. The right to share in the profits or losses, if any, though nothing was expressly agreed on with respect to them, would, of course, follow.

There is no question that a partnership may be formed by parol to deal in real estate, Hodge v. Twitchell, 33 Minn. 391, (23 N. W. Rep. 547;) Newell v. Cochran, 41 Minn. 378, (43 N. W. Rep. 84,) and we see no reason to doubt that one may be formed to buy, improve, and sell, for joint profit, a particular piece of real estate.

Where real estate is acquired in a partnership business and for its purposes it is partnership assets, though the legal title be taken in the name of one of the partners; and in closing the affairs of the concern the court may convert it into personal property for distribution, the same as other assets.

There was no prejudicial error in admitting evidence. That in relation to the value of the property and of alleged extra work of plaintiff was immaterial, but no finding of fact is based upon it, and manifestly it could have had no influence upon the findings as made.

Order affirmed.

Vanderburgh, J., took no part in the decision.

(Opinion published 55 N. W. Rep. 601.)