Harris v. Clark, 94 Iowa 327

Harris v. Clark

94 Iowa 327 | Iowa | 1895

Given, C. J.

Appellee sets out in 'his argument what purports to be a copy of the deed mentioned in the petition, and bases his argument largely thereon. This deed was not set out in nor ifiade a part of the petition. It forms no part of the record in this case, and cannot be considered. We must look to the petition and demurrer only. The petition shows that the plaintiff conveyed the land described to the defendant in consideration of his verbal promise to sell the same, and to pay the net proceeds arising from the sale to plaintiff; that he has sold the land; that the net proceeds, after paying all liens, is about one thousand six *329hundred dollars; and that he refuses to pay the same, .or any part thereof. If this was all that appeared in the petition, it would he clearly within the statute of frauds and the ruling in McGinness v. Barton, 71 Iowa, 644, cited by appellee, the agreement being verbal. It is also alleged as to the one thousand six hundred dollars that “defendant, at various times after the receipt .of the same as trustee, agreed to pay to plaintiff.” It is upon this alleged agreement as to money then in .defendant’s hands that plaintiff seeks to recover. Appellee contends in support of his demurrer that “there is no reason given for the agreement, or any .consideration therefor. Their case must fail for want of consideration.” The alleged agreement is not only an admission that, the money was held intrust, but also promises to pay it. The existence of the trust is sufficient consideration for the promise. In Collar v. Collar, 86 Mich. 507, 49 N. W. Rep. 552, it is said: “We held, when the case was here before, that where lands were .conveyed under a parol trust to sell and convert into money, and divide the proceeds, and the trust had been .so far executed by the trustee as to sell the land and receive the money, and such trust had been recognized by him, an action for money had and received would lie to recover such money by the person entitled .thereto.” See, also, Id., 75 Mich. 414, 42 N. W. Rep. 847; Calder v. Moran, 49 Mich. 14, 12 N. W. Rep. 892; White v. Cleaver, 75 Mich. 17, 42 N. W. Rep. 530.

We think the plaintiff’s petition states a cause of action, and that the demurrer should have been overruled. — Reversed.