195 N.W. 558 | N.D. | 1923
Lead Opinion
This is an action in the nature of an action to quiet title. The subject-matter involves a controversy between a sister, as plaintiff, and a brother as defendant, affecting a section of land in Stutsman county, North Dakota. In general, the complaint alleges a partnership arrangement made in 1908 between two of plaintiff’s brothers whereby they agreed to purchase and farm this section of land. .Also an agreement to use the services of plaintiff as housekeeper and to give to her therefor an undivided one-third interest in the land; that in the spring of 1909 one of these brothers died and her other brother, the defendant Herman, was substituted for him in the arrangement made; that, pursuant to such arrangement, she worked for some seven seasons performing domestic duties for her brothers and during such time the land was broken, farmed and buildings'erected thereon; that, in November or December, 1915, plaintiff discontinued her services and at that time the equity in the land was $12,500 and the value of her services thus rendered, $4,200; that in January, 1916, defendant Herman married and his wife took up the household duties formerly performed by plaintiff; that in July, 1916, her other brother, John, disappeared and his whereabouts have since been unknown. Plaintiff requests a decree for an undivided one-third interest in the section and, also, judgment for the value of the use of such land from 1916 until. 1922. The defendant Herman IConoske and his wife interposed an answer to the effect that in 1909, after the death of his brother, he was substituted as partner in the undertaking concerning the section; that in July, 1916, the other brother, John, disappeared; that he, the defendant, was appointed receiver of this brother’s interest, and pursuant thereto he has exercised control over the interest of such brother who disappeared; that in April, 1917, the company from whom the land was purchased deeded the same to the brother who disappeared and himself and he, as receiver and for himself, executed a mortgage to such-company for $12,560; that the plaintiff has had full knowledge of all proceedings - taken in connection with the partnership between his
The facts are: On June 22nd, 1908, the defendant Trimble Company made a contract for a deed with Arthur and John Konoske, plaintiff’s brothers, to sell this section of land to them for a consideration of $13,000. This contract recited the payment of a consideration of $200, a note for $1,000, due November 15th, 1908, and another note for $11,800 due on or before October 15th, 1916, which was payable, starting in 1909, by crop payments of one half of the grain raised from year to year. At this time plaintiff was aged seventeen years; Arthur, twenty-three years; John, twenty years; and defendant Herman, nineteen years. Then, they were living with their father and mother on the father’s farm some nine miles distant from this section in controversy. From the record it appears that on June 22d, 1908, $200 was paid on this contract and on October 5th, 1908, $1,000. Subsequent payments were made as follows: In December, 1909, $1,550; in November, 1910, $460; in December, 1911, $1,200; in November, 1912, $1,456; in October, 1913, $1,500. Pursuant to the testimony of the plaintiff, during the winter of 1908 — 1909 she made an agreement with her brothers Arthur and John to keep house for them. Then they had purchased this section. They were contemplating purchasing another section. They agreed with her that if she would stay with them they would give to her a one-third interest in this section. She was to contribute her work as a share of the payment; they were to contribute the money as their shares of the payment and each was to share alike in the value of the land. She agreed to stay with them until they were upon their feet. At this time this section was unbroken and had no buildings thereupon. She entered upon her duties at once. In March, 1909, plaintiff’s brother Arthur was killed in an accident. Pursuant to the testimony of the mother, the brother John offered his
The trial court found that tlie plaintiff did make an agreement in 1908 or 1909 after the execution of a contract, with her brothers Arthur and John whereby she agreed to keep house for them and they agreed to convey to her an interest in the premises; that after the death of Arthur in 1909 Herman made an oral contract with John whereby he was substituted in tbe purchase arrangement for Arthur; that Herman never had any knowledge at the time of his entering into the agreement with reference to purchasing the land with his brother John in 1909 of any claim or interest of plaintiff, and had no knowledge of any such claim until March, 1922; that since the disappearance of John on July 5th, 1916, Herman has occupied the premises and made improvements thereon and has invested thereon, in addition to proceeds received from the farm, the sum of approximately $8,000 received from the sale of another section. The court concludes that the oral contract made in 1908 or 1909 between the plaintiff Arthur, and John, was a contract of purchase and sale of an interest in land and that the partial performance thereof ivas insufficient to take it without the provision of the statute requiring- contracts thereof to be in writing; that plaintiff furthermore by reason of her failure to assert her claim in the premises has waived her rights and is not entitled to auy relief in a court of equity. Accordingly, judgment was entered dismissing her cause of action and adjudging plaintiff to have no interest in the land. Plaintiff has appealed from the judgment and demands in this court a trial de novo.
Opinion.
It was requisite to state the fads somewhat fully. The subject-matter is a family affair. There is no doubt that the brothers, John and Arthur, with their sister, flic plaintiff, engaged in a joint enterprise to
tween the parties was fiduciary in character and similar to those that c.xist between partners. Each owed to the other the utmost good faith and the most scrupulous honesty. The real estate involved, whether the title thereto was invested in one or more of the parties, was impressed with a trust for the benefit of the partnership in the joint adventure.
See Irvine v. Campbell, 121 Minn. 192, 141 N. W. 108, Ann. Cas. 1914C, 689; Gamble v. Loffler, 28 S. D. 239, 133 N. W. 288; note in Ann. Cas. 1916A, 1210; 15 R. C. L. 501; 23 Cyc. 455. The rights
of the parties are governed practically by the same rules that govern partnership. 15 R. C. L. 500; Goss v. Lanin, 170 Iowa, 57, 152 N. W. 45. Of course, the statute of frauds does not inhibit, under such
circumstances, the proof and the enforcement of the oral contract. Set' note in 37 L.R.A.(N.S.) 889; Hardin v. Hardin, 26 S. D. 601, 129 N. W. 108. Such joint adventure so established continued until its purpose was accomplished. Note in Ann. Cas. 1916A, 1217; Goss v. Lanin, 170 Iowa, 57, 152 N. W. 45. If, later, a partner was brought into this joint adventure, he became entitled to tbe same rights as the original coadventnrers. Fred Gorder & Son v. Pankonin, 83 Neb. 204, 131 Am. St. Rep. 629, 119 N. W. 449.
Accordingly, when the brother Arthur was accidentally killed, the
The only difficult question in the instant case is whether the brother Herman, the defendant, became a partner in this joint enterprise after Arthur’s death and whether such joint enterprise continued until and for the fulfillment of its original purpose.
To defeat this engagement and its continuance, Herman, the brother, asserts that he never knew anything about this arrangement until some six years after his sister had quit the service, and that his sister is estopped by reason of her silence and acquiescence from asserting, as against him, any such joint enterprise or contract. To aid a court of equity in fixing the status of property in a partnership or joint enterprise, the acts and conducts of the parties may furnish as convincing proof as oral words or agreement. In fact, the proof of an oral agreement may not be necessary where from all the acts and conducts of the parties a court of equity can be satisfied that it was the thought and intent of the parties to treat the property as. firm property. See Johnson v. Hogan, 158 Mich. 635, 37 L.R.A.(N.S.) 889, 128 N. W. 891; note in 37 L.R.A.(N.S.) 889; Ames v. Ames (C. C.) 37 Fed. 30.
In the case at bar the brother Herman recites no specific agreement made with his brother John. Me simply asserts that the arrangement was made that Ik; should step into the shoes of his dead brother Arthur. It must be noted that the entire family were living together with their father and mother. At this time, in 1909, plaintiff was aged about eighteen years; John, twenty-one years; and Herman, the defendant, twenty years. Between themselves the brothers, John and Herman, continued as formerly the brothers, John and Arthur, did. They worked the home place for a time; they started to break, farm and improve this section involved, and purchased and -worked another half section of school land. The plaintiff continued her engagement the same as before. For seven seasons she worked hard and faithfully, pursuant to this original joint engagement, in assisting her brothers in the whole enterprise. The fact that the brothers otherwise were, partners does not serve to deny this particular joint, adventure. In December, 1909, $1,550 was paid upon this contract for this section of land;
After the services of the plaintiff ceased in November, 1915, the brother John disappeared under peculiar circumstances in July, 1916, following. His whereabouts have since been unknown. Hnder the-peculiar circumstances the conduct of the plaintiff, in not asserting actively her claims in the section, is not inconsistent with her alleged rights. She had considered her brother the soul of honor. With him all of her business relations had been conducted. She had not theretofore at all discussed with Herman these business arrangements. It is wholly fair to assume that under such circumstances family pride and
We are of the opinion that upon this record a joint adventure was-created between the brothers, John and Arthur, and their .sister the plaintiff; that after the death of Arthur, Herman was substituted in the shoes of his deceased brother and this joint adventure continued, pursuant to its original purpose; that it was accomplished pursuant to its original purpose at the time when the completion of plaintiff’s services were accepted and she ceased then the rendition thereof; that, at that time she was possessed of and entitled to an undivided one-third interest in this land to the extent of the right, interest and equity of this joint adventure so earned at that time. See Irvine v. Campbell, 121 Minn. 192, 197, 141 N. W. 108, Ann. Cas. 1914C, 689; note in Ann. Cas. 1916A, 1216; 23 Cyc. 462; 15 R. C. L. 507. The trial court erred in its conclusion that the statute of frauds applied and that the plaintiff was estopped by reason of Herman’s lack of knowledge. We are clearly of the opinion that Herman under the facts and circumstances, cannot be heard to say that he did not knotv about this arrangement when he accepted a substitution of himself in place of his deceased brother and continued this joint adventure without question and without in any manner negativing his sister’s rights which existed at the time he became a partner in this joint adventure. The judgment of the trial court, accordingly, is reversed and the cause remanded for further proceedings consonant with this opinion.
Rehearing
Respondent, in his petition, admits that the agreement involved might be termed a joint venture, if it hud been made before the land was purchased; but, contends that, since the land was purchased before the agreement was made, the statute of frauds applied and no joint venture could be created. Since joint ventures arc created upon principles of law analogous in the creation of partnerships this contention is without merit. It matters not whether the land involved was individually owned before, or was afterwards acquired, so long as it was contributed and devoted, as property, to the uses and purposes of the joint venture. Note in Ann. Cas. 1916A, 1210; 20 R. C. L. pp. 852, 860, 862; 23 Cyc. 455; 30 Cyc. 424; 15 R. C. L. p. 504. Brown, Stat. Nr. 5th ed. § 261a. It is urged that the deposition of one of the parties was improperly taken and admitted in evidence. This contention is without merit. It is finally urged that, in any event, this court should point out specifically the nature of plaintiff’s interest in the joint venture. As pointed, out in the opinion, plaintiff, at the time when the joint adventure was accomplished, so far as her active relations therewith were concerned, and when the completion of her services was accepted and her active relations ceased, then was entitled to an undivided one-third interest in this land to the extent of the right, interest and equity of this joint adventure so earned at that time. That is, if the land then, for purposes of liquidating the joint adventure' and paying each of the joint adventurers, had been sold and the cash therefor, less the liens, brought into court for an accounting, it would have been a simple matter to have divided the cash among the parties. But, the land has not been sold; it has remained in specie; subsequent liens have attached; taxes and interest subsequent liavt; accrued; use and occupation of the land has been had. An accounting' in equity now must be liad for the purposes of this joint adventure. In order to have such accounting now, the net value of the joint adventure concerned must be considered as if the property which constitutes the assets of the joint adventure was in court now and was liquidated in cash less the liens that existed thereupon at the time when plaintiff’s active relations ceased and the joint adventure was accomplished. The net assets of such joint adventure then remaining must necessarily he
