105 F. 841 | 2d Cir. | 1901
(after stating the facts as above). From the foregoing statement it appears that the jury found in accordance with the plaintiff’s testimony, which was that his equity in the hotel property was conveyed without consideration or parol agreement,
The parol agreement was not a part of the agreement under which either the St. Botolph property or the Willard place was conveyed to the defendant. The title to the two properties had been placed in the name of Wright for the convenience of Smith, to save his tenants from annoyance, and without fraud as against creditors. Subsequently the defendant went into the occupancy and management of the twTo parcels, with the agreement for a division of the net profits from rents or sales. It was not an agreement for the sale of the lands or of an interest therein to the plaintiff or to any one. The promisor did not undertake to sell at all, but simply to divide the net avails of the receipts from rents or sales, if sales or leases were made. The oral agreement related, not to land, but to the profits arising from the promisor’s care and ownership of lands previously conveyed. If any statute of frauds has relation to this oral contract, it is the statute of the state of Massachusetts, and the construction of that statute by the courts of Massachusetts is of controlling importance. Grafton v. Cummings, 99 U. S. 100, 25 L. Ed. 336; Burrell v. Root, 40 N. Y. 496. So far as the decisions of that state throw light upon the subject, the contract is not within the statute. In Trowbridge v. Welherbee, 93 Mass. 361, the plaintiff had agreed with Robbins and the defendant that they should take a conveyance of a tract of land; that it should be transferred by joint arrangement of the three persons, and w.hen it was sold the proceeds should be equally divided between them. The plaintiff was not to contribute money, but his skill and services. Robbins sold his interest to the defendant, who agreed to become responsible to the plaintiff for his third part of the net proceeds. The land was subsequently sold, and the action was brought for the plaintiff’s one-third of the net profits. The court held that a parol promise to pay another a portion of the profits made by the promisor in a purchase and sale of real estate is not within the statute of frauds; that the defendant’s promise to sell the land was within the statute, but, having been'performed, an action would lie upon the promise which was without the statute if the promises were separate. The conclusion that a separate parol promise to pay a part of the