10 Ala. 444 | Ala. | 1846
At first we were disposed to think, that this case was within the statute of frauds, the agreement of the parties not being in writing. Upon the re-argument of the cause, the pleadings have been more particularly brought to our notice, and we are now satisfied, that the statute is not relied on by the,defendant, so as to be a bar to the relief sought. • The defendants plead the statute of frauds, to any relief upon the agreement set up in the bill, and then state what they assert to be the true contract of the parties, which they are now, and always have been willing to settle by. The complainant then amended his bill, setting out the contract in the terms stated in the answers, and to this amended bill, the defendants have never filed an answer. Upon the filing of the amended bill, leave was given to the defendants to file an answer within sixty days, if they thought proper. Only one of the defendants answered, and this not for the purpose of answering the amended bill, which was in fact merely the echo of the contract as stated in the answers, but to supply an omission. Under these circumstances, we'are clear in the opinion that the defendants have waived the defence arising under the statute of frauds. The defence of the statute of frauds must be pleaded, and if it is
The remaining questions arise out of the account.
The contract between the parties being, that each should be interested in the profits, in proportion to the money invested by him in the purchase of lands; the only questions necessary, to be ascertained are, what amount did each invest, and what was the amount of the nett profits by the sale of the lands of the company; and, according to these points, all the numerous exceptions converge. We shall therefore adopt the course pursued by the chancellor, considering the principles which must control the account, instead of considering each exception in detail.
The main controversy in the court below, was as to several tracts of land, in which, it was alledged, the complainant had no interest, because he did not, according to the terms of the agreement, advance his proportion of the purchase money. It would be a most unreasonable construction of the agreement of the parties, that when a tract of land was purchased, they were all to meet, and each advance his proportion of the purchase money. The benefit to be derived by the union of their interests, was doubtless principally, to reduce the price of the lands, by reducing the competition; but this advantage would have been paralyzed if the parties were compelled to act in concert. It was only by separately engaging in the business, that the views of the contracting parties could be carried out. When an Indian consented to sell, those engaged in that traffic understood their business' too well to leave him at the mercy of another land jobber. Such was the practice under the contract, as it appears that the complainant paid the entire purchase money for some of the first tracts purchased.
It would follow, from the nature of this contract, and the manner in which it must necessarily have been executed, that a portion of the partners could not exclude one of their number, actively engaged in the business of the concern, from a participation in the purchase of land, for want of funds, without notice. It is not pretended that any such demand
The lands, which it was sought to exclude the complainant from the benefit of, are distinctly stated in the bill, and the proof is very satisfactory to show, that he is entitled to •share in the profits of these, as well as the rest, to which his right is not controverted.
It is also argued, that the decree is wrong, in not declaring the share of each partner in the fund. The bill is filed by one of the partners, to obtain his share of the profits of the land actually sold, in the hands of the remaining partners. If the other partners desired the chancellor to settle the accounts, ■as between themselves, they should have made such a case by becoming actors. Instead of which, they unite in resisting his claims, and do not profess an inability to settle among themselves. The very terms of the contract, contemplated a division as soon as a sale was made, and ás the land was purchased for cash, no difficulty whatever could arise, as upon the sale of any one tract, each had a right to his share of the proceeds.
It also appears, that some of the lands were sold partly for cash, and partly on credit, and the report of the master ascertains the respective proportions; and it is now further objected, that a decree was rendered in favor of the complainant, for the entire amount, when it does not appear that the debts have been collected. The report of the master ascertains the amount of cash received, and the amount in notes ; and allows two years to the parties for the collection of the latter. The defendants were called Upon to disclose all the facts relating to the sale, and do not state that the money is not yet
It is also supposed, that the chancellor erred in decreeing the profits of the land actually sold, to the complainant, without decreeing a sale also of the lands remaining on hand. It is a sufficient answer to this objection, that neither of the parties desired it, so far as we can judge from the pleadings. It results from the contract, that upon the sale of any one tract, each partner is entitled to his share of the product, and cannot be delayed until all the lands are sold. The apprehension of the plaintiff’s counsel, that the lands on hand might be sold at a loss, and that the profits already made should be reserved as a fund to meet, such a contingency, -is entirely groundless. The lauds having been paid for by all the partners, if they were to be struck out of existence, it could not affect the right to profits on the other lands, already sold.
It is further urged, that there is a mistake in the account, by giving the complainant a credit for $325, the purchase money of the “Bull tract,” which the testimony of Miers, and R. H. Ware shows, was re-sold on the same day, and the purchase money refunded to complainant.
Our first impression was, that this objection was well taken ; but upon a further examination of this complicated account, we think it sufficiently appears, no such mistake has been made. The master does, it is true, make a list of all the lands purchased, with the cost, including the “Bull tract,” but this is done in obedience to the decretal order of the chancellor, to ascertain whether the complainant had advanced his share of the purchase money. In order to ascertain the profits,he afterwards puts down the tracts sold, excluding the “ Bull tract,” the profits of which was divided when the sale was made, (except #29,) and ascertains the account to be $6,448 77, from which he deducts the costs of the tracts so sold, and the expense paid on another tract, in all $2,418,
We are not able to perceive that any error has intervened, and the decree of the chancellor must be affirmed.