Carr v. Leavitt

• Decision Date: 23 September 1884
• Citation: 54 Mich. 540,20 N.W. 576
• Court: Michigan Supreme Court
• Parties: CARR v. LEAVITT.

20 N.W. 576

54 Mich. 540

CARR v. LEAVITT.

Supreme Court of Michigan

September 23, 1884

Error to superior court of Detroit.

James W. Romeyn, for plaintiff.

Henry M. Duffield, for defendant.

COOLEY C.J.

Action of assumpsit. The plaintiff testified on his own behalf, in substance, as follows: That defendant, in October, 1881, was desirous of purchasing from one Kearsley certain lots in the city of Detroit, and of procuring the services of the plaintiff in bringing about such purchase, and accordingly entered into the following contract with the plaintiff "That the said plaintiff should employ his time and services in and about the purchase of the said property of said Kearsley at a price fixed between plaintiff and defendant, and in and about the management of the said Kearsley property, in case it should be purchased by the said defendant from said Kearsley; and that the said defendant did promise and agree with the said plaintiff that he, the said defendant, would furnish the means necessary to make the said purchase, and did promise and agree that in consideration of the said time and services of said plaintiff as aforesaid upon the sale and disposition of said property so to be purchased from the said Kearsley, he, the said defendant would pay to the said plaintiff one-half the profits realized upon the said sale over and above the price paid therefor and that the said plaintiff, in consideration of the said promises of said defendant, did promise and agree to and with the said defendant that he would contribute his time and services accordingly, and that by reason of his, the said plaintiff's, efforts the said property was purchased at and for the price of $37,000, the price as aforesaid agreed upon, and said property was conveyed by said Kearsley and wife to the said defendant by a good and sufficient deed, dated the thirty-first day of March, 1882, which deed was placed in evidence; and that the same property was afterwards sold by the said defendant to Messrs. Hubbard, King & Hubbard, of said Detroit, at and for the price of $52,000, by a good and sufficient deed, which deed was placed in evidence; and that the said defendant, on demand, had refused to account or pay to the said plaintiff one-half of the profits realized on the sale, or any thereof."

This being the plaintiff's case, and it being admitted that the alleged contract was not in writing, the defendant took the objection that the contract was void under the statute of frauds. The trial judge held the objection to be well taken, and directed a verdict for defendant.

If the contract the plaintiff relied upon was within the statute, it must have been because it contemplated a purchase and then a sale of certain lands. But the plaintiff was to be neither purchaser nor seller, and the contract did not contemplate that in any contingency an interest in the land was to be conveyed to or vested in him. It contemplated only that in a certain event the plaintiff should receive a share of the moneys that a sale of the land should bring. His interest was, therefore, in these moneys, and...