Love v. Burton

• Decision Date: 24 November 1900
• Citation: 61 S.W. 91
• Parties: LOVE v. BURTON.
• Court: Tennessee Supreme Court

61 S.W. 91

LOVE v. BURTON.

Court of Chancery Appeals of Tennessee.

November 24, 1900.

Appeal from chancery court, Dekalb county; T. J. Fisher, Chancellor.

Bill by R. L. Love against C. T. Burton. From a decree for complainant, defendant appeals. Affirmed.

Webb & Cantrell, for appellant. A. Avant, for appellee.

BARTON, J.

The bill in this case was filed to set up and recover an undivided half interest in a certain mill and site, the complainant claiming a half interest under a verbal contract made with the defendant. The bill asked as alternative relief that, if the defendant refused to make a deed, or ratify the parol sale, he be given a decree for about $400, which he had paid the defendant for a half interest in the land. The defendant answered, relied on the statute of frauds, and denied that he had ever sold, or agreed to sell, to the complainant, a half interest in the mill. Proof was taken. The chancellor heard the cause, and decreed that the complainant had paid the defendant $400 on a parol sale of a half interest in the mill and site, and that, inasmuch as the defendant relied upon the statute of frauds, and refused to make a deed to the complainant for this half interest, the complainant was entitled to recover the amount paid by him, which was decreed a lien upon the mill and site, which was ordered to be sold in satisfaction thereof. The defendant appealed.

The facts, as we find them, are that the complainant is a son-in-law of the defendant. The defendant, in 1894, had commenced the erection of a mill, having cleared off a site on his own land. About this time he agreed with his son-in-law, the complainant, that, if he (the complainant) would pay one-half the cost incurred and to be incurred in the erection of the mill, he should have a half interest; that, after the mill was erected, each should pay one-half of the operating expenses, and receive half of the profits of the mill. At the time the agreement was made it is understood that the complainant was not to be charged with the value of any work which had been done up to that time except what was owing to the millwright, and it was agreed that no charge should be made against him for the value of the land upon which the mill was located, but he was to pay one-half the charges of the work done by the millwright up to that time, and one-half of the further cost of the mill, and was to have a half interest, and the mill was to be operated as above set out. The defendant contends that he did not agree that the complainant was to have a half interest in the mill, but only agreed that, if he would furnish one-half of the money thereafter expended, he should have a half interest in the profits. It is unnecessary for us to go into a detailed discussion of the evidence. We find the facts to be as above stated, which, in substance, are that the defendant made a parol sale to the complainant of a half interest in this mill site, which would include such amount of ground upon which the mill was located, and immediately around it, as may be necessary to properly operate the mill. Upon the faith of this agreement the complainant paid and expended the sum of $400. Defendant refuses to make a deed, and repudiates the parol trade. In view of one contention raised by counsel it is necessary that our finding of fact be accurately stated and understood. It is insisted that even the complainant's own evidence shows that the contract was simply one to share in the profits of the mill, but this insistence is not sustained by the proof. It is true that in one place in his deposition the complainant does state as follows: "I contracted with the defendant in 1894 in regard to the building of the water mill. The contract was that I was to help build the mill, pay half of expenses, and receive half of the profits." This statement is much enlarged on by counsel. But, as appears from a subsequent reading of his deposition, it was only a partial statement. Complainant goes on to show clearly that it was a sale of a half interest in the mill, and that he was to own a half interest in it after the mill was built. In one place he states, "He told me, when we were talking of building the mill, that any time after we got the mill completed, if I wanted to sell my interest, he would take it, and pay me my money." Being further examined about the matter, he stated: "When we commenced talking about it, some work had been done. They had commenced to clear off the mill site, and got the timbers for the dam. Burton told me that, if we went into a partnership, that what had been done at that time would not cost me anything, except the work done by Brasswell, the millwright. I was to pay him one-half for my part of this work at that time. He told me that, if we went in together, my part of the mill site should not cost me anything." He further says in another place that, after the work was done, and they were to make a settlement, he told Burton to make his charges against him for his part of boarding the work hands, and that he said he was not going to charge anything on that account, and that he told Burton that they would let that be offset by $10. Burton owed him for borrowed money. He says the arrangement about running the mill was that one was to run it one year and receive the profits, and the other the next year. He proves the payment of one-half of all the expenses except for the work done before the trade was made in clearing off the mill site. Again, in another place he says that he paid this amount of money under the agreement with Burton that "he was to own a half interest in the mill"; that he would not have made the payments if the contract had not been that "he was to own a half interest in the mill and site." On cross-examination he again states that the arrangement was to own a half interest in the mill. He makes this statement, in substance, in a dozen different places in varying language, but always meaning the same. In one place in his cross-examination he gives this answer: "After we had agreed to go in, I was to pay half the expenses of building the mill, and was to have a half interest in it. He said what work had been done, except what work Brasswell did, would not cost me anything; and my part of the mill site would not cost me anything if I would help him to build the mill." Again, in another place, he says: "He said my part of the mill site would not cost me anything, and he said, after we got the mill built and paid for he would buy my interest in it at any time." He says: "About two years after the mill was built, I asked him to make me a deed, and he refused, and said he would not make anybody else a deed to a foot of the land." In another place, in response to the question, "How much ground did Burton agree to let you have for a site?" he says: "He did not say how much. He just said I could have a half interest in the mill site. He did not say how much would be laid off. He just said half, or my part, of the mill site should not cost me anything." In another place he repeats this, and says, "He said, if he built that mill, my part of the mill site should not cost me anything." Such is the substance of the complainant's testimony, and we take it that there is no mistaking his version, when all his testimony is read, that he means to state distinctly that the agreement was that he was to be "an owner of an undivided one-half interest in the mill and site when the mill was completed," and that for this he was to pay one-half of the cost of the erection of the mill, and that in computing that cost the value of the site was not to be taken into consideration. Now, it is true that the defendant testifies that when the contract was made he and the complainant understood that the arrangement was that complainant was simply to have a half interest in the profits of running the mill, and his insistence is that, inasmuch as he has complied with this part of the contract, the complainant has no right of action. In the first place, if there was no evidence to corroborate either party, this story on behalf of the defendant would be extremely improbable, as it would certainly be an improvident and foolish contract for the complainant to make to advance one-half the cost of the structure on the faith of such an agreement. He could have no guaranty that his interest would last for any length of time. If he was not to own a half interest in the mill, then he would simply have a personal contract as to payment of profits, good only as between him and the defendant, subject to be defeated by the defendant's death...