93 Mass. 361 | Mass. | 1865
It appears by the bill of exceptions that the plaintiff had discovered that there was in Roxbury a tract of land for sale at a price which he,thought advantageous to the purchaser, and he believed that some money could be made by buying it to sell again. He therefore agreed with Robbins and the defendant that they should take a conveyance of the land to themselves, pay a part of the purchase money, and give a mortgage to secure the balance; that the property should be managed, improved and sold by joint arrangement of the parties, and after it was sold the net proceeds should be equally divided between them. The purchase was accordingly made. The plaintiff furnished no money in the transaction, but contributed his knowledge, skill arid services. Whether on account of this contribution he had an interest in the property by way of resulting trust, need not be considered.
On the 9th of October 1861, Robbins, by consent of the plaintiff, sold out his interest to the defendant. As a part of the consideration of this transfer, the defendant agreed to become responsible to the plaintiff for his third part of the net profits. Both these agreements with the plaintiff were by paroi. In March 1863, the defendant sold and conveyed the land for a certain price, and the plaintiff brings this action to recover his one third part of the net profits. The defendant insists that paroi evidence is inadmissible to maintain this action under the statute of frauds. The objection is not that the contracts were not to be performed within one year from the time of making them, for it is obvious that they were capable of being performed within that time, and therefore they are not within the clause of the statute relating to such contracts. Peters v. Westborough, 19 Pick. 364. Lyon v. King, 11 Met. 412. But the objection is that they rebate to the sale of lands, or of an interest concerning lands.
The cases of Smith v. Burnham, 3 Sumner, 435, and Dale v. Hamilton, 5 Hare, 369, which are cited and commented upon in Fall River Whaling Co. v. Borden, 10 Cush. 458, and which are adverse to each other, have been cited in this case. But they were suits in equity to enforce specific performance; and in Smith v. Burnham Mr. Justice Story admits that they are unlike
Exceptions Sustained.