Carr v. Leavitt , 1884 Mich. LEXIS 602 ( 1884 )

Cooley, C. J.

Action of assumpsit. The plaintiff testified on his own behalf in substance as follows:

That defendant, in October, 1881, was desirous of purchasing from one Kearsley certain lots in the city of Detroit-,, and of procuring the services of the plaintiff in bringing-about such purchase, and accordingly entered into the following contract with the plaintiff:

That the said plaintiff should employ his time and services in and about the purchase of the said property of said Kearsley at a price fixed between plaintiff and defendant, and in and about the management of the said Kearsley property, in case it should be purchased by the said defendant from said Kearsley; and that the said defendant did promise- and agree with the said plaintiff that he, the said defendant, would furnish the means necessary to make the said purchase; and did promise and agree that in consideration of the said time and services of said plaintiff as aforesaid, upon the sale- and disposition of said property, so to be purchased from the said Kearsley, he, the said defendant, would pay to the said plaintiff one-half the profits realized upon the said sale over and above the price paid therefor; and that the said plaintiff, in consideration of the said promises of said defendant, did promise and agree to and with the said defendant that he would contribute his time and services accordingly. And plaintiff alleges that by reason of his, the said plaintiff’s, efforts, the said property was purchased at and for the price of $37,000, the price as aforesaid agreed upon, and said property was conveyed by said Kearsley and wife to the said defendant by a good and sufficient deed, dated the 31st day of March, 1882, which deed was placed in evidence, and that the same property was afterwards sold by the said defendant to Messrs. Hubbard, King & Hubbard, of said Detroit, at and for the price of $52,500, by a good and sufficient deed, which deed was placed in evidence. And that the said defendant, on demand, had refused to account or pay to the said plaintiff one-half of the profits realized on the ■sale, or any part thereof.

This being the plaintiff’s case, and it being admitted that .the alleged contract was not in writing, the defendant took ■the objection that the contract was void under the Statute of Frauds. The trial judge held the objection to be well taken, .and directed a verdict for defendant.

If the contract the plaintiff relied upon was within the statute, it must have been because it contemplated a purchase .and then a sale of certain lands. But the plaintiff was to be neither purchaser nor seller, and the contract did not contemplate that in any contingency an interest in the land was to be conveyed to. or vested in him. It contemplated only that in a certain event the plaintiff should receive a share of ■the moneys that a sale of the land should bring. His 'interest was therefore in these moneys, and not in the land itself. And the moneys were to be payable to him in consideration of services performed. The profits on the two trades, to be brought about by the plaintiff, were to be taken •as the measure of compensation, instead of any other that might have been agreed upon.

This surely was not a contract “ for the sale of any lands, or any interest in lands,” within the meaning of the Statute ■of Frauds. How. Stat. '§ 6181. That statute contemplates a transaction between parties contracting with each other as principals; and this was not such a transaction. In this case the plaintiff as agent undertook to perform for the defendant certain services, and the defendant undertook to make a •compensation therefor, the amount of which should be contingent on the value of the services. It was assumed in Bunnel v. Taintor’s Adm’r 4 Conn. 568, that such a contract was not within the statute, and there are many express .adjudications to the same effect. Trowbridge v. Wetherbee 11 Allen 361; Fiero v. Fiero 52 Barb. 288; Hess v. Fox 10 Wend. 436; Bruce v. Hastings 41 Vt. 380 ; Bannon v. Bean 9 Iowa 395 ; Harben v. Congdon 1 Cold. 221; King v. Hanna 9 B. Mon. 369: Heyn v. Philips 37 Cal. 529; Lesley v. Rosson 39 Miss. 368; Benjamin v. Zell 100 Penn. St. 33. Our attention has been directed to no cases which are opposed to these.

The defendant relies upon a number of decisions by this Court, which are supposed to have some bearing upon the •case, but we fail to perceive their relevancy. Every one of them was a case in which an interest in lands was bargained for, and was to be acquired by one of the parties in pursuance of the terms of the contract. Hillebrands v. Nibbelink 40 Mich. 646, may be taken as an illustration. The alleged verbal contract was that a father would convey to his 'son a farm in satisfaction of a certain claim, — a contract as plainly within the statute as if the land were to be conveyed for an agreed price in money.

The judgment must be set aside and a new trial ordered.

The other Justices concurred.