99 Mass. 354 | Mass. | 1868
The court was not bound to rule upon the sufficiency of the plaintiff’s evidence to maintain the action, before the whole testimony was closed upon both sides. It is entirely a matter of discretion whether to do so or not, and is not open
The principal ground of objection to the plaintiff’s recovery is that the agreement is within the statute of frauds as a con ■ tract for the sale of lands, and so void. The agreement, as ser forth in the special count, seems to be obnoxious to that objection. But there being also a count for money paid by the plaintiff to the use of the defendant and at his request, we must look at the facts of the case to see whether, as the question was presented to the jury, the verdict can be sustained. It appears that, in the arrangement for the purchase of the interest in lands, there were four persons concerned as parties. The contract upon which this action is brought was between the plaintiff and the defendant only. It related to the proposed purchase; but its connection therewith was merely collateral. Separated from the principal agreement, as it may be, and, for the purposes of enforcement, must be, on account of the diversity of the parties, it becomes simply, upon one side, a promise to advance money for another, at his request; and, on the other, an express promise to repay it. The money having been advanced, the obligation to repay becomes a debt, which may be enforced by an action upon the express promise, or by the general count for money paid.
The case, however, was submitted to the jury upon a somewhat different aspect. The court instructed the jury “ that if the plaintiff proved, to their reasonable satisfaction, that he and the defendant agreed to join in the purchase, and to pay for the property in question, and that for the convenience of the parties the payment was to be upon drafts upon the plaintiff, of which drafts the defendant was to pay one half; and if the property was bought under this agreement, and the drafts were presented to and accepted by the plaintiff, before any notice from the defendant that he refused to pay his half of them or go on any further in the enterprise of buying the property with the plaintiff; and if the plaintiff proceeded to pay them according to his
The plaintiff’s acceptance of drafts for the purchase money fixed the rights and obligations of the parties from that time, and the defendant was no longer at liberty to revoke his request. The instructions required the jury also to find that the property Was bought before any notice from the defendant of his intention to revoke.
The property was purchased, not to be held by either the plaintiff or the defendant, but was to be taken for the basis of a mining corporation. The interest which the plaintiff acquired, and in which, by the agreement, the defendant was to share, was an interest in the stock, or proceeds of the stock, of such corporation. The purchase of the interest in real estate was a step only towards the performance of the whole agreement, and was completed before the defendant gave notice of revocation.
It is held by some of the English authorities that the consideration agreed by paroi to be paid for a conveyance of real estate can be recovered only upon a subsequent independent promise; the moral obligation and the previous voidable contract answering as a consideration for the new promise. Cocking v. Ward, 1 C. B. 858. Kelly v. Webster, 12 C. B. 283. Buttemere v. Hayes, 5 M. & W. 456. This doctrine may result ",n a measure from the rule, which is there established, that the consideration of an agreement, within the statute of frauds, must be set forth in the writing, as well as the promise. However that may be, the English authorities upon that subject have not been very closely followed by our courts. It was early decided, in Packard v. Richardson, 17 Mass. 122, that the consideration need not be set forth in the writing to be enforced, but might be proved aliunde; and it is now so provided by the statute itself. Rev. Sts. c. 74, § 2. Gen. Sts. c. 105, § 2.
Upon the whole, the court are all satisfied that the promise to
The cases cited by the defendant upon this point are mostly suits to enforce rights which the purchaser claimed to have acquired in the real estate under a paroi agreement. The decisions are uniform in that respect.
If the arrangement be regarded as one of partnership, it would make no difference. A promise to repay money advanced by one partner for another partner, to make up his share of the joint capital, or for any other special purpose, aside from the transaction of partnership business, may be recovered without waiting for dissolution and settlement of the final balance. Gardner v. Cleveland, 9 Pick. 334. Williams v. Henshaw, 11 Pick. 79. Rockwell v. Wilder, 4 Met. 556.
The refusal of the defendant did not impose upon the plaintiff the duty to manage the property purchased in any different manner from that contemplated by the arrangement under which it was purchased. If he had disposed of it otherwise, or converted it in any way to his own exclusive use, he would undoubtedly be obliged to account for the proceeds; and the defendant might require his share to be applied towards the claim of the plaintiff against him. But that would be matter of defence. We see nothing in the case which should require the plaintiff to do more than he has done, in the way of holding the property and offering to transfer his share to the defendant, in order to maintain his action. The rulings and instructions of the court seem to us to be in all respects sufficient and proper. Exceptions overruled.