102 N.Y.S. 1079 | N.Y. App. Div. | 1907
This ease is not free from difficulty, because of inconsistencies between the two theories upon which the plaintiff seeks to sustain the judgment. The plaintiff alleges that he entered into copartnership with the defendant George W. Egbert for the purpose of purchasing, developing and selling an unimproved tract of land referred to in the record as the “ Ditmás tract; ” that the purchase price in excess of the amount raised by mortgage was contributed by said defendant and the title was taken in the name of the defendant Virginia L. Egbert pursuant to an agreement between the plaintiff and said George W. Egbert to the effect that, when the plaintiff had paid him a sufficient sum to make them equal contributors to the purchase price and carrying charges, he would deliver, or cause to be delivered to the plaintiff, a deed of an undivided half of said premises. It is claimed by the plaintiff that said agreement to convey was subsequent and collateral to the agreement creating the partnership. Prior to said alleged copartnership,, the plaintiff and one Decker had made a contract to purchase said tract for the sum of $40,000, and either because they, were not able to complete the purchase or because said Decker was then preparing to withdraw from the copartnership then existing between them, an arrangement was made with said defendant, and, passing for the moment what the agreement was, it appears without dispute that said defendant advanced the sum of $7,500 and obtained the rest of the -purchase price by borrowing $32,500, upon a bond executed by the plaintiff, said defendant and said Decker, secured by a mortgage executed by said Decker and wife, to whom the property was first conveyed; said defendant also conveyed to the plaintiff and said Decker, or to some person for their benefit, premises in which he had an equity of redemption then valued at $4,000, and thereupon said Ditmas tract was conveyed to the defendant Virginia L. Egbert. The defendant claims that he merely gave the plaintiff and said Decker a bonus of $4,000 for their contract. The plaintiff claims that at
The complaint prayed for an accounting and for a decree directing the conveyance to the plaintiff of an undivided half of said ' premises, which is the relief granted by the judgment appealed from. The defendant, Virginia L. Egbert admits that she is a trustee ' for the true owner, so we need have no difficulty on that head, but may consider the case as though the title stood in the name of the ■defendant George. W. Egbert, and any reference made herein to the defendant will be understood to refer to him. The. agreements between the plaintiff- and the defendant, whatever they were¿ were not in writing, and the defendant invokes the Statute of Frauds. It is unnecessary now to discuss the proposition that a partnership for the purpose of dealing in real estate may be created by an oral agreement (Chester v. Dickerson, 54 N. Y. 1; Traphagen v. Burt, 67 id. 30 ; Fairchild v. Fairchild, 64 id. 471; King v. Barnes, 109 id. 267; Bailey v. Weed, 36 App. Div. 611; Burkardt v. Walsh, 49 id. 634); but a partnership' agreement not within the Statute of Frauds, because by.it.no estate or interest in-lands is created, granted or assigned, must not be confused with such an agreement which does involve the creation, granting or
The plaintiff claims that there has been such part performance by. him as will enable equity to decree specific performance under the head of fraud. After carefully examining all of the cases cited by the respondent, and many others, I am unable to find any ground supported by authority for the exercise of such jurisdiction in this case. In the case of Traphagen v. Burt (supra) one partner without the knowledge of the other, and in violation of his agreement, took title in his own name; subsequently the parties, adjusted their differences by an agreement, which the judgment earned out. In addition to. the fact that the court found in that case that the plaintiff had been induced to put himself in a situation which would have enabled the defendant to perpetrate a fraud on him if the agreement was not carried out, there was also a clear
The purchase of the. neighboring property by- the plaintiff individually was in' no sense-an act of part .performance; it was an independent transaction. The court found that the plaintiff took charge of the premises and performed work, labor and services in the care,, management'and improvement-thereof; but for the services, ren-. dered and money expended at the request of the defendant he has a, perfect remedy at law. Manifestly the plaintiff did not have possession of the property, because the defendant sold lots, borrowed money on mortgage and built houses on the property, .apparently with little reference to the plaintiff.. While the parties appear to have treated the plaintiff and the Manor Realty Company 'as identical, upon. the present state of the proof said company could maintain an action against the defendant to recovér the balance in its favor as shown by its books; but even if these advances are treated as part payments made by the. plaintiff, he is in no better position, because it is settled that a payment of the consideration even in full is not of itself sufficient, to justify a court' of equity in decreeing specific performance (Cooley v. Lobdell, 153 N. Y. 596); nor is the rendition of services. (Russell v. Briggs, 165 id. 500.) In Ryan v. Dox (34 N. Y. 307).the plaintiffs expressly agreed not to find any one but the defendant to bid. in the premises for. them,' this agreement they kept, whereby the defendant obtained the property for a nominal sum; and' of course the plaintiffs in part performance of their agreement had put themselves in a situation' from which equity alone could relieve them, and but for which, relief the defendant would have been able to perpetrate a gross fraud. In Canda v. Totten (157 N. Y. 281). the plaintiff not only had paid-the purchase price, .but had made repairs,' paid taxes,
The plaintiff testified: “I talked with him in regard to the price (meaning the defendant), and with regard to his becoming a partner with me in the purchase of that tract of land. * * " I said 1 would like to have him purchase the tract with me, and he said he would do so.” With respect to the subsequent agreement io convey a half interest in the property, he testified:' “ Q. And after you had established an equality with him as to contributions, what did he say he would do, or see done ? A.' He would 'convey to me, or have conveyed to me, a half interest in the property.” In order to determine whether a partnership existed, it is quite essential to know the terms of the agreement, and yet all the defendant agreed to do, according to the plaintiff, was to purchase the tract with him and to convey a half interest in the property when he had established an equality as to contributions.- The learned counsel for the plaintiff says in his brief that the plaintiff testified to the “conclusion Of fact” that a copartnership was formed, and would' have testified to the terms of the agreement if asked; but calling men partners does not make them such, and I have scanned the record in vain to" find that the plaintiff testified to any such corn •elusion. The-only suggestion-of a partnership is. the statement of the plaintiff that he talked with the defendant about becoming a partner, but this is followed by a statement of a specific agreement
Jenks, Hookeb and Gaynoe, jj., concurred.
Interlocutory judgment reversed and1 new trial granted, costs to abide the final award of costs. •