Lewis v. Winfield

NOURSE, P. J.

The plaintiff sued in equity, pleading three causes of action—one for damages for fraud in the inception of a contract, one charging a breach of trust, and one asking that his title to an individual one-half interest in real property be quieted. The case is founded upon an oral contract whereby the parties agreed

to

purchase certain real property for the sum of $2500 to repair and renovate the building thereon, and to share equally the expenses and profits therefrom. The trial court found against plaintiff on the charges of fraud and the appeal does not attack that finding. The judgment rested upon the finding that under the contract each party agreed to contribute an equal amount of money or property for the purchase, acquisition, repairing, renovating, and improving said property, and an equal amount to apply on the payment of taxes, liens, and encumbrances, and that they would then equally divide the rents and profits. It was found that plaintiff’s right to demand a conveyance of his interest was contingent upon his payment of his share of these charges, but that he had failed over a period of years to do so. Judgment was entered decreeing that upon plaintiff’s paying to defendants within thirty days the sum of $360.54 in addition to one-half of all taxes, liens, and penalties, the defendants should convey to plaintiff an undivided one-half interest in the property.

The plaintiff attacks the judgment on three grounds—that it decrees a forfeiture of partnership property, that it effects a dissolution of a partnership through a money judgment in favor of one against the other, and that it is not supported by the evidence.

It should be noted here that appellant took the inconsistent position of repudiating and affirming the contract in the same action. His charges of fraud run from the inception of the contract, but his suit to quiet title to the real property is founded upon an affirmation of the contract. The parties are in accord that title was not to be conveyed to appellant until he had completed all payments called for by the con

[545]

tract. Both parties agree that these payments were not made. The real dispute between the parties relates to the separate items of credits and expense.