Mitchell v. Tonkin

95 N.Y.S. 669 | N.Y. App. Div. | 1905

Rich, J.:

The plaintiff claims that defendant agreed with him and two others to carry out a certain contract for the purchase of real property which he had made and was unable to complete, and in consideration of his furnishing sufficient money to carry out the contract defendant should take title in his name, and upon a sale of the premises all profits, after deducting interest on the moneys advanced, were to be divided into four equal ■ parts, one of which should belong to the plaintiff. There was no agreement, however, as to when the property should be sold, or at what price. The defendant purchased the property under the terms of the plaintiff’s contract for $1,850, arid the plaintiff thereafter procured a person who was willing to purchase the premises for $2,400, but defendant refused to sell at that figure. This action was thereupon begun to recover "the amount the plaintiff would have been entitled to receive providing the sale had been made, and he has recovered a judgment for that, amount, from which this appeal is taken.

Upon the trial the plaintiff gave evidence tending to establish these facts, but the trouble is that he has mistaken his remedy, if he has any, at this time. The four: persons were to share in the profits of this venture, and to this extent there was a community of interest, and they became partners in respect to the profits. The relation could only be terminated by consent of the parties, or, in case of their being unable to agree, either could maintain an action in equity to terminate the relation and for an accounting; and this would have been the proper remedy. (Marston v. Gould, 69 N. Y. 220; Wilcox v. Pratt, 125 id. 690.) A common-law action will not lie' until after a full accounting, balance struck and -express promise to pay. (Belanger V. Dana, 52 Hun, 39, 43.) The title to. the property still remains in the defendant. There is nó evidence justifying the inference that his refusal to' sell for $2,400 was unreasonable, and until 'this is made to appear, a court of .equity will not interfere. (Lord v. Hull,. 178 N. Y. 9.) For these reasons, and without considering the other questions involved, the judgment must be reversed, with costs.

Hirschberg, , P. J., Woodward, Hooker . and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event. .