HOWELL v. KELLY, Pa., Judgment, Law, casemine.com

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Attorney(S)

W. F. Guiler, with him W. H. Playford, for appellant. — Since the act of 1856, a trust in lands can be proven in no other way than by writing, Barnet v. Dougherty, 32 Pa. 371, except in the case of a resulting trust raised from fraud in obtaining the title, or from payment of the purchase money: Bickel's Ap., 86 Pa. 204; Brickell v. Earley, 115 Pa. 473; Kellum v. Smith, 33 Pa. 158. In the present case, no question of fraud is raised, nor was any part of the purchase money paid by the plaintiffs. If the agreement of 1883 was in force when defendant took up the coal lands in his own name, his refusal to recognize plaintiff's interest was simply a breach of an unexecuted parol contract to buy and sell land, for which the remedy would be an action for damages; and the measure of damages, the money paid or the expenses incurred on the faith of the contract: Meason v. Kaine, 63 Pa. 335; Sands, Herdic Co. v. Arthur, 84 Pa. 479; McCafferty v. Griswold, 99 Pa. 270. In Everhart's Ap., 106 Pa. 349, it was held that where a partnership is formed for the purpose of buying and selling lands, the interest of one of the partners in the lands cannot be established by parol, when the other sets up the statute of frauds. Plaintiff should have brought a bill in equity or action of account render: Leidy v. Messinger, 71 Pa. 177; Crow v. Green, 111 Pa. 637. R. H. Lindsey, with him A. D. Boyd and S. L. Mestrezat, for appellee. — The plaintiff is suing for an interest in contingent profits arising from a sale of land, and the statute of frauds has no operation: Everhart's Ap., 106 Pa. 349; Benjamin v. Zell, 100 Pa. 33; Hess' Ap., 112 Pa. 168; Maffitt's Admr. v. Rynd, 69 Pa. 380. Our case is not ruled by Meason v. Kaine, 63 Pa. 335, for in that case Kaine had taken title and afterwards sought, on a parol agreement only, to compel Meason to contribute one third of the purchase money and take title to an undivided third of the land. In our case, the plaintiff and defendant only took options. Our suit is not for land directly or indirectly, but for a division of profits actually received. There was but a single transaction, and assumpsit is the proper form of action: Jackson v. Emmens, 119 Pa. 356; Kutz v. Dreibelbis, 126 Pa. 335; Cleveland v. Farrar, 4 Brews. 27.

Judges

PER CURIAM:

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Howell v. Kelly, Appellant.

Statute of frauds — Options on land — Parol partnership — Profits — Assumpsit.

Profits realized in a single transaction of procuring options for coal lands and reselling them at a profit, under a parol agreement of partnership, can be recovered in assumpsit by one partner against the other. The statute of frauds has no application.

PER CURIAM:

We are of opinion that the statute of frauds has no application to this case. The plaintiff and the defendant were partners, engaged in the single transaction of procuring options for coal lands, and reselling them at a profit. The profits were to be divided between them. It was held in Benjamin v. Zell, 100 Pa. 33, that an interest in contingent profits, arising from a sale of real estate, to be made thereafter, does not amount to an interest in the land itself, within the meaning of the statute of frauds. It would be a novel doctrine to hold that a partnership agreement must be in writing because the subject-matter of the partnership was dealing in real estate. The plaintiff brought this action to recover his share in the partnership profits of a single transaction, and the only question of importance in the case was, whether the partnership had expired prior to the transaction in question. This was a question of fact which was properly submitted to the jury, and their verdict ends the case.

Judgment affirmed.

HOWELL v. KELLY

Howell v. Kelly, Appellant.

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