Morgart v. Smouse

• Court: Maryland Supreme Court
• Writing for the Court: SCHMUCKER, J.
• Citation: Morgart v. Smouse, 103 Md. 463, 63 A. 1070 (Md. 1906)
• Decision Date: 14 June 1906
• Parties: MORGART v. SMOUSE.

63 A. 1070

103 Md. 463

MORGART v. SMOUSE.

Court of Appeals of Maryland

June 14, 1906

Appeal from Circuit Court, Allegany County; Robert R. Henderson and M. L. Keedy, Judges.

Action by Thomas F. Smouse against William A. Morgart. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before McSHERRY, C.J., and BOYD, SCHMUCKER and BURKE, JJ.

De Warren H. Reynolds and Ferdinand Williams, for appellant.

Thomas J. Peddicord, for appellee.

SCHMUCKER J.

The appellee sued the appellant in the circuit court for Allegany county to recover what he claimed to be his share of the profits realized from the purchase and sale of certain real estate. The declaration contained only the common counts in assumpsit, but it was accompanied by a bill of particulars in the form of an account charging the defendant with one-half of specified profits alleged to have been received by him on three several transactions. The count relied on in argument by the plaintiff was the one for money had and received for his use. The appellant as defendant pleaded two general issue pleas, and also payment and limitations, whereupon the plaintiff joined issue on all of the pleas, except that of limitations to which he replied a new promise. To the replication the plaintiff rejoined that he had been kept in ignorance of his cause of action by the defendant's fraud until within less than three years before the bringing of the suit. The case was tried before the court without a jury, and the verdict and judgment were against the defendant, who took this appeal.

There is but one bill of exceptions in the record, and that is to the court's ruling on the prayers. The plaintiff, to support his case, offered evidence tending to prove the making of a verbal contract between him and the defendant for the purchase, development, and sale for their joint account of two parcels of land, the one, containing 5,000 acres known as the "Cunningham Tract" and the other containing 1,300 acres, known as the "Maynadier Tract." To establish the contract in reference to the Cunningham tract, the plaintiff himself went upon the stand as a witness, and, after saying that he had frequent interviews with Mr. Hamill, the owner of the lands, beginning in 1896, he testified as follows: "I met Mr. Hamill a number of times afterwards, and in conversations about this land I finally got a price from him on the land, as he represented three-fourths owners of the property at the time and he told me he would sell me the land on time payments at $5 per acre." Then, after saying that he had made arrangements to borrow the money to buy the land, when Morgart, the defendant, came frequently to see him in June or July, 1898, and offered to go into the deal with him, he described the making of the contract with Morgart as follows "We were talking over this property, and I told him about having arranged for the money to buy the one tract. He said to me that it would be foolish to go into a deal of that kind, and if I would allow him to go in this deal he would furnish whatever money it took, and that he would take one-half of the profits whatever we made out of it, and it would relieve me of borrowing this money, and I arranged not to take this money." In reply to the question, "Just state what Mr. Morgart offered to do," the plaintiff testified: "Mr. Morgart's offer was that he would furnish all the money required to run this deal to a finish, and do all the work connected with it, and would do that in consideration of half the profits to be made out of it, and, on the other hand, if we lost in it, I was to put up my half of what was lost." And further testified that he accepted Morgart's proposition. The plaintiff and Morgart a short time thereafter went together to see Mr. Hamill, who declined to give them at that time a written option on the land, as he had given the refusal of it to other parties for 30 days. After the expiration of the 30 days Morgart went again to see Mr. Hamill, and when he returned he told this plaintiff that Hamill had given him a written option for the land and had charged him $100 for it, but the plaintiff never saw the alleged written option, nor, if it existed, was it put in evidence in the case.

In reference to the Maynadier tract, the plaintiff testified fixing the date as some time in November, 1898: "Mr. Morgart acted on my instructions to him for to buy the Maynadier land. It was understood it was to go in the same deal. I explained to him it was the natural outlet to get the timer away from the Cunningham lands, and after going on the Cunningham land he saw that himself. *** My arrangement [with Morgart] was that I was to share in the whole deal, and that it was to apply to the Maynadier as well as the Cunningham." The defendant, Morgart, stoutly denied the truth of this testimony of the plaintiff, but there is other evidence in the record tending to corroborate it, from which the court might have found it to be true. We will, for the purposes of this opinion, give the plaintiff the benefit of him own version of the contract on which he bases his right to recover. Neither the Cunningham nor the Maynadier tract of land was conveyed by its owners to either of the parties to this suit, but there is evidence in the record tending to show that both tracts were conveyed in 1899 to purchasers procured by Morgart and were afterwards sold at an advance by those purchasers, and that Morgart received a portion of the profits thus realized, and refused to divide the amount so received by him with the plaintiff. The plaintiff's alleged contract with Morgart must be regarded as having been intended to be either a verbal assignment by the former to the latter of one-half interest in an equitable estate in the lands mentioned in the evidence, or an agreement between the two parties for the future purchase, development, and sale of those lands, and an equal division of the profits or losses to result from the venture. Treated as an assignment of an equitable interest in the lands, it was void under the fourth section of the statute of frauds, for it is well settled that a transfer of an equitable interest in lands is as much within the operation of the statute as a transfer of a legal interest. Polk v....