Pennybacker v. Leary
| Decision Date | 05 December 1884 |
| Citation | 21 N.W. 575,65 Iowa 220 |
| Parties | PENNYBACKER v. LEARY |
| Court | Iowa Supreme Court |
Appeal from Woodbury Circuit Court.
ACTION IN CHANCERY. Upon a trial on the merits, plaintiff's petition was dismissed. He now appeals to this court.
AFFIRMED.
J. H. & C. M. Swan, for appellant.
Joy Wright & Hudson, for appellee.
I.
The petition alleges that the parties entered into a parol contract of partnership for the purchase and sale of certain tracts of land, containing together 400 acres; that, in pursuance of this contract, the lands were purchased, and the title conveyed to defendant, and that thereby they each became the owner of an undivided one-half thereof. The special relief prayed for is that the interest of the parties be confirmed, and that the lands be partitioned accordingly. The petition also asks for general relief. The answer of the defendant denies the contract of partnership, and the interest claimed by plaintiff in the lands. Other allegations of the pleadings need not be recited here.
II. The preponderance of the evidence establishes that the parties did enter into a contract for the purchase of the land whereby they were to share in the profits and losses of the transaction. By the terms of the agreement, plaintiff was to purchase the lands in defendant's name, who should advance the whole of the purchase money, and be allowed interest thereon at the rate of 10 per cent per annum. The lands, or the profits remaining, after deducting from the proceeds of the sale of the land the purchase money, interest thereon, and taxes, were to be divided equally. Plaintiff's services in the purchase of the lands were put against the money for the purchase, furnished by defendant upon the terms just indicated. Plaintiff, in his own testimony, states the contract and transaction to this effect. Defendant contradicts this evidence, and denies that any such contract was made. But plaintiff's testimony is strongly and directly corroborated by two witnesses, who either were present when the contract was made, or heard defendant admit it substantially in the form testified to by plaintiff. This oral contract must be regarded as established by the preponderance of the evidence.
III. But defendant insists, and pleads as a defense in his answer that, as the contract was for the purchase of an interest in lands, and was wholly oral, it cannot be enforced under the statute of frauds. The contract, to be truly stated, amounted to a parol agreement for the creation of a partnership, the object of which was to acquire and sell certain lands. The part of the agreement obligating the parties to purchase the land was but an incident of the contract of partnership. It provided for the subject and manner of investment of the capital of the firm. It was simply an agreement that the firm would buy the lands. By this agreement neither party bought or sold lands. It was not an agreement for the purchase and sale of lands. It was nothing more than an agreement that the firm should buy lands of another, which should be held as firm property. It was not, therefore, an agreement or contract under which an interest in or title to lands was attempted to be transferred. It simply provides what interest the parties shall have therein, when the lands shall be acquired, as provided by the contract. Surely, if two persons agree to enter into a partnership for the purchase and sale of dry goods, and therein specify the manner of the contribution of the capital of the firm, and the goods to be purchased therewith, and the persons of whom they shall be purchased, the contract could not be regarded as creating or transferring any...
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