Atkins v. Little

• Decision Date: 01 January 1872
• Citation: 17 Minn. 320
• Parties: CHARLES H. ATKINS and others v. FREDERICK LITTLE and others.
• Court: Minnesota Supreme Court

17 Minn. 320

CHARLES H. ATKINS and others

v. FREDERICK LITTLE and others.

Supreme Court of Minnesota.

Appeal by plaintiffs from a judgment of the district court, Goodhue county.

The action was to foreclose a mechanic's lien for a steam-engine, machinery, and materials sold by plaintiffs to the defendant Little, and by him placed in a steam saw-mill.

Wilder & Williston, for appellants.

Phelps & Taber, for Charles McGlashan, respondent.

RIPLEY, C. J.

The judge before whom this case was tried without a jury finds, as matters of fact, that on April 19, 1862, by contract of that date under their hands and seals, one James Lawther agreed to sell to one T. J. Little lot No. 1 in block No. 51, in Red Wing, and to execute and deliver to him a warranty deed thereof, upon condition that said Little should pay therefor $300, as follows: his three promissory notes, payable in lumber at as low a price as the same quality of lumber could be bought in Red Wing, as follows: $100 on demand after June 20, 1862, $100 in one year and $100 in two years thereafter, with 10 per cent. per annum interest till paid, payable annually; said Little agreeing to pay said sums, and also to deliver said lumber at such times and in such quantities and of such quality as said Lawther elected, the amounts so delivered to be indorsed on said notes, and to pay all future taxes; and, in case of default on his part in any respect, said Lawther might consider the contract as forfeited, and dispose of the lot as if no such contract had been made.

That thereupon Lawther gave said Little and defendant Frederick Little possession, who, from their joint means and for their joint benefit, immediately erected a steam saw-mill thereon, ever since and now used as such.

That said Littles, having bought of one Akers a steam-engine for such mill, giving therefor their eight joint notes for $100 each, said T. J. Little assigned said written contract to said Akers as security therefor, and on May 27, 1862, to secure two other like notes given for other machinery for said mill, made a further assignment in writing of said contract to said Akers.

That the Littles jointly occupied and ran said mill on joint account until the spring of 1865, when said T. J. Little verbally sold to said Frederick all his right, title, and interest in and to said lot 1, and said mill and said contract, and under and in pursuance of said sale surrendered to him sole and exclusive possession of said lot and said mill.

And the court further finds that from that time said Frederick was the equitable owner of said lot and mill, subject to Lawther's rights under said contract, and said Akers' under said assignment, and that upon the payment by him to Lawther of the amount due on said contract, and to Akers of the amount due on said notes to him, said Frederick was entitled to a deed in fee from said Lawther of said lot.

The respondent has argued this branch of the case as if this last finding were a conclusion of law from that which precedes it; but it is expressly found as a fact, and we do not perceive upon what principle we are to assume against such an express statement that it is a conclusion of law, and to proceed to consider whether the facts previously set out do or do not support it.

It would not only be mere assumption, but an assumption, in the face of circumstances appearing in the case, tending strongly to show that it was an erroneous assumption. For instance, the circumstance that Lawther gave possession to both the Littles, coupled with the other facts respecting their use and occupation of the property, tends to show that the lot was bought for the firm as partnership property, and that Lawther knew it; and the further fact appears that when Frederick Little, subsequently to Thomas J.'s sale to him, made the arrangement hereinafter stated, Lawther accepted his and defendant McGlashen's bond as security for the amount due him upon said contract, (nothing having been paid on it,) and executed a warranty deed to defendants Sanderson and McGlashen; whereby it appears, said debt having then been long overdue, not only that said Lawther had waived any right of forfeiture by reason thereof, but that, inasmuch as the assignments to Akers are stated to have been made as security for the debt of T. J. Little and F. Little, on payment of which Akers would have been bound to reassign to T. J. Little or his order, Lawther could not, without some such order or authority from T. J. Little so to do, have conveyed to McGlashen and Sanderson.

It is therefore more than likely that Lawther had agreed, at the Littles' request, when T. J. sold to Frederick, to convey to the latter as sole owner in equity of the property; an agreement, the validity of which, though verbal, (if it were so,) no one but Lawther could dispute on that account. If he recognized it, and, in pursuance thereof, conveyed the property on F. Little's order, the appointee of F. Little (the defendant here) cannot dispute it. The probabilities, therefore, seem to be against any mistake of the court below in placing the finding in question among the findings of fact.

But further, looking only at the facts above mentioned and stated by the court, previously to the finding in question, while it is true that this case lacks one element of Gill v. Newell, 13 Minn. 462, (Gil. 430,) in that there Newell delivered the written contract to Gill when he gave him possession, which it was not in T. J. Little's power to do, there is, nevertheless, as good a part performance of the verbal contract in this case as in that; for when the court finds, as it does here, that T. J. Little sold his interest, it is to be understood that he received value therefor, and though payment alone is not a good part performance to take a verbal contract out of the statute, payment and taking possession, under and in pursuance of a verbal contract, have always quite uniformly been. Browne, St. Frauds, § 465.

And as the object of this verbal contract was the same as in Gill v. Newell, viz., that Frederick might become the owner of the land; as the intention of the parties on a sale of all T. J.'s interest in the land, the mill, and the written contract is certainly as clearly shown to have been to assign the written contract to Frederick, as such an intention is, in Gill v. Newell, held to appear from the verbal agreement there proved, — that case seems to be a direct authority for holding in this case that the effect of the verbal contract, if valid, between the Littles was to transfer the equitable ownership of the land, and T. J.'s rights under the written contract, to Frederick, so as to enable him, through T. J., or in some other way, to obtain the legal title; and in which way, as between them, was immaterial. Gill v. Newell, 13 Minn. 462, (Gil. 430.)

But there being a good part performance, the contract was valid in equity, (Id. 470,) and so all parties have considered it, and have treated F. Little as the owner of the property, as appears from the further facts found.

These facts are, in substance, that McGlashen made large advances to F. Little, under an agreement between them in the logging business, and in and about the running expenses of said mill, to be repaid from the proceeds of lumber sawed by said Little at said mill; and between August 31 and September 6, 1865, (the old engine having failed,) these two men made a verbal agreement that McGlashen should advance $1,400 for a new one, to be purchased by Little in Chicago, and that Little should secure him on his interests in said mill and lot; but which verbal contract was afterwards superseded by the arrangement hereinafter stated.

Little, meantime, however, under this bargain, contracted with plaintiffs for a new steam-engine and appurtenances, paying on the execution of the contract $550, furnished him by McGlashen therefor, who, on the arrival of the engine at Red Wing, advanced about $115, freight and charges, and afterwards, November 9th, McGlashen personally, at Little's request, and for him, paid plaintiffs on said contract the further sum of $750.

The engine was received and put into the saw-mill by said Little, October 22, 1865, and thereafter, and before the filing of the claim for lien hereinafter mentioned, the following agreement was made: Little sold defendant Sanderson one undivided half of the lot and mill for the sum of $2,000, to be paid by Sanderson to McGlashen upon his advances to Little, and Sanderson to have a deed in fee in his own right of said half, and said McGlashen a deed in fee of the other half, to be by him held as security for the balance of Little's indebtedness. To carry this out, McGlashen, under an agreement to that effect with Little, on October 26th, compromised said Little's indebtedness to Akers for $500, which he paid, and took an assignment in writing from Akers to himself and Sanderson of said written contract; and, about the same time and for the like purpose, — that is, to carry into effect the above-mentioned agreement, — Little and McGlashen, as before stated, procured Lawther to take their security for the purchase price of said lot, and to execute to said McGlashen and Sanderson a deed of said lot in fee "under the sale and arrangement aforesaid;" prior to which time, but subsequent to the placing of said engine in said mill, and "under the sale to them as aforesaid," said Little had surrendered possession of said premises to said McGlashen and Sanderson.

On these facts it is apparent that whatever McGlashen's interests, as between Little and himself, in this property, may be under this deed, he obtained it and them under, by virtue, and in pursuance of an agreement with Little as the owner of the property. Whatever his title may be, it comes to him through Little as truly, though not so directly, as if Little, not Lawther, had held the legal title and executed the deed. He is, therefore, as against Little and those...