Manget v. Carlton , 34 Ga. App. 556 ( 1925 )

Bell, J.

(After stating the foregoing facts.)

It is contended that the plaintiff’s claim of a right in the Ritch farm is necessarily founded upon a contract for the sale of an interest in land within the meaning of the statute of frauds, and that the writing as to this property was insufficient to satisfy the statute. Whether, if a writing was necessary at all, the language in the agreement referring to the property thereafter to be acquired as “the property traded for Avalon” would furnish a sufficient key for its identification, and whether, if it would not, there was yet such performance as would make an exception to the statute if it would otherwise be applicable, are questions which we will pass over without decision, being of the opinion, as we are, that the agreement was not one falling within the operation of the statute. It-appears that the parties made a contract to enter into a joint adventure, if not a partnership, for the purpose of dealing or trading in lands for profit, into which one of them was to put property and the other was to put his skill or service, and that the contract did not contemplate a transfer of title from one of the parties to the other, or that either should become the other’s vendor or purchaser.

It is generally held that the statute of frauds has no application to an agreement of such character. Lane v. Lodge, 139 Ga. 93 (76 S. E. 874); Black v. Black, 15. Ga. 445 (3); Bates v. Babcock, 95 Cal. 479 (30 Pac. 605, 16 L. R. A. 745, 29 Am. St. Rep. 133); Hoge v. George, 27 Wyo. 423 (200 Pac. 96, 18 L. R. A. 469, 200 Pac. 96; 27 C. J. 221, § 207.

This is true notwithstanding it may occur, or even be intended, that, as an incident of the enterprise, one of the parties will take and hold title to lands for the benefit of both. In such case the title of the holder is subject to an implied trust in the other party’s favor to the extent of the other’s interest. Civil Code (1910), § 3739; Sloan v. Haley, 18 Ga. App. 631 (90 S. E. 74); Swift v. Nevius, 138 Ga. 229 (2) (75 S. E. 8); Jenkins v. Georgia Investment Co., 149 Ga. 475 (1) (100 S. E. 635); Pound v. Smith, 146 Ga. 431 (4) (91 S. E. 405); Wilder v. Wilder, 138 Ga. 573 (1) (75 S. E. 654).

In this division the discussion is confined to the first count, and the word “petition” is limited accordingly. While the transaction in question was unaffected by the statute of frauds, we do not think that the petition was sufficient to withstand the demurrer. Under the terms of the original agreement, the “first funds received” were to be used by Carlton in paying Manget for his equity in “Avalon,” and it was not until payment had been made therefor in full that the parties were to “have equal rights and share equally in the property traded for Avalon, dividing all profits from sale of same.” So long as Manget acted properly and in good faith, Carlton would have no claim against him for a division of potential profits, until he, Manget, was paid for the property that he had put into the venture. It is noticed, too, that the petition alleged that the value of the Ritch property was $150,000, subject to a lien for $25,000, which Manget assumed, and it might possibly be true that this incumbrance should be removed, before there would be any “first funds” which could be paid on the equity of Manget in "Avalon.” But as to this it is unnecessary to express any opinion at the present time. Even if Manget were fully reimbursed, the mere fact that the value of the property in which he and Carlton had then become jointly and equally interested was of a certain amount would not, under the terms of their agreement, render him liable to Carlton for the value of Carlton’s interest. Since the petition fails to allege that Manget had been paid for his equity in Avalon Apartments, or that the property had been sold, or that Manget had in any way violated the terms of the agreement, it did not state a cause of action. As already indicated, the fact that the plaintiff was instrumental in bringing about an exchange of the property belonging to the defendant for other property of a greater value would not, without more, entitle him to recover a money judgment for any part of the difference. This is all the petition shows. If the Hitch property has not been sold and Manget has committed no breach of his contract, he, Manget, is not subject to be sued for the profits which the other party might enjoy on a final consummation of the project. Whether, if he sought to exclude Carlton without a sale, Carlton could have a remedy in equity to establish his interest und to have a sale made and the proceeds applied as provided in the contract, and whether, if so, such would be the only remedy, are questions which merely suggest themselves as. problems which might possibly arise in some case as a result of a contract like that under consideration. See cases cited lastly in the preceding division and those collected in note in 18 A. L. R. 498 et seq. If Manget has sold the property, the plaintiff could, no doubt, recover his share of the profits, if any, to be ascertained according to the terms of the agreement, and if Manget was guilty of unfair dealing in the sale, the plaintiff’s claim should likely be based on actual values and not on the price received; but again, neither of these cases is made by the petition, and it is useless to imagine what facts would entitle the plaintiff to recover. Suffice it to say that the petition fails to show the defendant’s violation of any duty to the plaintiff whatsoever, and therefore does not set forth a cause of action.

The second count is fatally defective because the instrument declared on contains no promise on the-part of the defendant. It shows that Carlton agreed to accept notes in the aggregate of $15,000 in settlement of the controversy, but not that Manget agreed or promised to give them or to pay this or any other amount. The undertaking was purely unilateral, purporting only to' bind Carlton, notwithstanding it was signed by both parties. Payment can not be exacted of Manget merely upon Carlton’s promise to accept it. Civil Code (1910), § 4230; Cooley v. Moss, 123 Ga. 707 (2) (51 S. E. 625); Simpson v. Sanders, 130 Ga. 265 (1) (60 S. E. 541).

Each count of the petition was subject to general demurrer.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.