Coward v. Clanton

California Supreme Court Apr 23, 1889 No. No. 12813Published

Before: Beatty, Works

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Holding. A parol partnership agreement for the purpose of dealing in real estate is enforceable, but a partner is not entitled to a share of profits until the entire tract of land is sold and net profits are realized.

Issues

Whether a parol partnership agreement to deal in real estate is void under the statute of frauds.
Whether a partner is entitled to a share of profits before the entire partnership property is sold.
Whether a prior pleading signed by an attorney is admissible as an admission against a party in a subsequent action.

Disposition. reversed

Quotations verified verbatim against the opinion

“The contract, as between the parties to it, does not in any way affect the title to real estate, nor does the present controversy between the parties involve any such question.”

“As we view the contract and the evidence, the whole tract must have been sold at a profit to entitle the respondent to recover a money judgment.”

Synopsis

Appeal prom Judgment—Time por Taking—Dismissal.—An appeal from a judgment taken more than one year after its rendition cannot be considered, and will be dismissed.

Partnership—Agreement to Deal in Real Estate—Statute op Frauds. — A partnership agreement, the object of which is to deal in real estate and share the profits, is not within the statute of frauds.

Id. — Executed Parol Agreement—Partner Estopped to Dent Validity. —In an action by one of the partners for an accounting of the profits realized under such an agreement, after the same has been executed, a partner who has received the entire profits is estopped from claiming that the agreement was void under the statute of frauds.

Id.—Construction op Agreement — Profits prom Sales.—Where a partnership agreement to deal in land provides that one of the partners shall furnish the money to buy the land, and the other shall contribute his skill in selling it, the profits to he equally divided, and in pursuance thereof a tract of land is purchased and a part of it is sold at a profit, hut for less than the purchase price paid for the entire tract, no profits are earned, within the meaning of the agreement, in which the partner contributing his skill is entitled to share.

Evidence—Pleading Admissible as an Admission.—A pleading in a prior action between the same parties, although superseded by an amendment, is admissible in evidence in a subsequent action against the party filing it as an admission made by him.

Id.—Attorney’s Authority to Sign Pleading is Presumed.—Where such pleading is signed by an attorney, and not by the party against whom it is offered, but no objection to its admission is made on that ground, it will not be presumed on appeal that the attorney in signing acted without authority.

Opinion — Works

Works, J. The plaintiff and respondent brought his action in the court below, against the appellant, upon a contract which he avers in his complaint was one of partnership, by which the defendant was to furnish the capital to purchase real estate, and the plaintiff to furnish the necessary skill and labor in reselling the same, and to pay certain expenses connected therewith, the parties to share equally the profits realized from such resales; that a certain tract of land was purchased in pursuance of the contract, in the name of the defendant; that there was a net profit resulting from such resale, which the defendant had received and failed to account for.

The prayer of the complaint was for a dissolution of the partnership, an accounting, and judgment for plaintiff for the share of the profits found to be due him.

The defendant denied the partnership, and alleged that [25]he had, by the contract, employed the plaintiff to sell the real estate, as his agent, upon terms similar to those set up by plaintiff.

The contract is alleged to have been in parol, and it is so found by the court.

The matter of accounting was referred to a commissioner, who found that the tract of land was purchased for $20,000, and was sold in parcels for an amount aggregating $24,156.50; that the net profits amounted to $3,420.66, and that respondent was entitled to recover $1,710.33, and judgment was rendered accordingly. Upon a motion for a new trial, the court below found that the findings of the commissioner that the whole of the tract had been sold were not sustained by the evidence. The decision was as follows: “The motion for a new trial in this action having been submitted and considered by the court, the court, being fully advised, decides that the finding herein, to the effect that the plaintiff and defendant, or either of them, sold to Jeans Brothers twenty acres of land for $3,000, is not sustained by the evidence; and that the finding herein,to the effect that plaintiff and defendant, or either of them, sold to J. I. Eaton thirty acres of land for $4,500, is not sustained by the evidence; and that the finding that the plaintiff and defendant, or either of them, sold to H. D. Bodgers five acres of land for $1,050, is not sustained by the evidence; and the court in this decision finds and decides that none of said sales were made by plaintiff and defendant, or either of them; and the court further adjudges and decrees that by reason of said sales not being made, the amount of the judgment heretofore rendered herein is too large by $812.50; and it is ordered that unless the plaintiff, within five days from the filing of this order, consents that said judgment be reduced to the sum of $1,500, that a new trial of said cause be granted, and that it be so ordered.”

Coward v. Clanton

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Synopsis

Opinion — Works

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Concurrence — Beatty

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