Lesley v. Rosson , 39 Miss. 368 ( 1860 )

Handy, J.,

delivered the opinion of the court:

This bill was filed by tbe appellee to recover upon a contract alleged to have been made between him and the appellant a sum of money claimed to be due him.

The bill states in substance, that the complainant was engaged, in the year 1852, as agent of the Charleston and Memphis Railroad Company to procure the right of way for that road over the lands through which it was to pass, and to aid the engineers in selecting the best route for the road, and that he called on the defendant, who was well acquainted with the country, for aid and advice upon the subject; that the defendant suggested, upon their examination of the country, that the best point for that road to cross the Mobile and Ohio railroad, which was then located, was over the land of defendant at a place which was subsequently selected and adopted for the crossing of the two roads; that, in the course of the conferences of the complainant and defendant, the latter proposed to the complainant that, “if he would use his influence with the said Charleston and Memphis Railroad Company to have their road located over the said land of the defendant so as to make said crossing on it, and the road should be so located, if the complainant would pay him eight or ten dollars per acre (the same being the alleged cost of it) for the half-interest in it, (that is, to pay him one-half of that estimate,) and prepare and lay it off into town lots and bring it into market, at his, the complainant’s, own expense, and sell it off at auction or otherwise to the best advantage, then the complainant should have one-half of the proceeds of the sale of tbe land, but the title should remain in the defendant, where it then was, until such sales could be effectedto which the complainant assented, and undertook to do as was proposed “in consideration that half of the proceeds of the sales should be his, as his share of the transaction that owing to unavoidable circumstances, which are stated, the location could not be made before the year 1854, but that it was made in that year over the lands of defendant referred to, and mainly through the instrumentality and exertions of the complainant; that the final price agreed on to be paid by complainant for his half interest in the proceeds of the sale of the land was one thousand six hundred dollars, and in the spring of 1855 he offered to pay defendant one thousand dollars, but that defendant replied that he did not need it then and that complainant had better keep it to pay the expenses which he would be at in performing his part of the contract, and not to pay it then; that various persons made application to complainant to purchase the land; whereupon complainant conferred with the defendant whether the original plan of preparing the lands — laying them off in town lots and selling them — should be pursued, or whether they should be sold as a whole; and it was then agreed that, if a sale of the whole could be effected at thirty thousand dollars, it should be so made, in which event complainant was to have his share of the sale as originally agreed on, making a just allowance for the expenses he would have to incur in clearing, laying off and selling the lots, and for the one thousand six hundred dollars, his part of the price agreed to be paid; that the complainant then made several ineffectual efforts to sell the land to various persons, and afterwards that the defendant sold the lands for the sum of thirty thousand dollars to parties, receiving five thousand dollars in cash and notes for twenty-five-thousand dollars, bearing interest, and executed a deed to the purchasers; that the complainant afterwards called on the defendant relative to the sale, who promised him that, after making collections, he would make all things satisfactory to complainant, as before agreed on, and that he confided in this; that the de-. fendant has received the entire amount of said purchase-money, amounting, principal and interest, to thirty-three thousand five hundred dollars: one-half of which complainant claims under the contract, less the sum of one thousand six hundred dollars and the expenses, which could not have exceeded three hundred dollars, thereby leaving due the complainant fourteen thousand eight hundred and fifty dollars for his part of the transaction.

The bill further alleges that complainant was put to great trouble and expense in effecting the location of the railroad on the defendant’s lands, and that his efforts were the main cause of the location being so made, and this service was the main consideration with the defendant in' making the contract, and that the efforts and services of the complainant have caused the land to be of more than double the value they would have had otherwise. The prayer is for an account and payment of the sum due complainant.

The defendant demurred to this bill on two grounds: 1. That the contract set up was for the sale of lands, and- is void under the Statute of Frauds. 2. That the remedy, if any, is at law.

This demurrer was overruled, the defendant answered, and on final hearing on pleadings and proofs a decree was rendered for the complainant, from which this appeal is taken.

The first error assigned is the overruling of the demurrer.

It is, first, insisted that the contract set up in the bill was for a sale of lands; and, being in parol, is therefore void under- the statute. But this is clearly not tenable.

The contract, as stated, in effect was not for the purchase of the land or a part of it, by the complainant, but for an interest in the proceeds of the sale. It was agreed that the defendant should retain the title, to be conveyed to purchasers when sales should be effected; and it was only after sales were made to other persons that the complainant was to be entitled to his share of the avails of the sale. The bill distinctly avers, and the contract as stated shows, that the sale of the land or any part of it was not the object of the contract, bnt that the complainant was to have an interest in it only to the extent and for the purpose of entitling him to one-half of the proceeds of sales which should be made; and that his efforts and services in procuring the location of the railroad to be made upon it, and in performing the other acts agreed to be performed by him, in order to enhance the value of the land and effect sales of it at increased prices,.were the main consideration which induced the parties to enter into the contract. It was, in substance, an agreement by which the defendant’s lands should be sold to other persons at an improved value to be caused by the complainant’s exertions, and, after sales were so made, that the complainant should receive one-half of the proceeds, first paying the sum agreed on by the parties and performing the acts agreed to be done by him, in order to entitle him to his share in the avails. It is very clear that this was not a contract for the sale of the land to the complainant. But it is insisted that, thus regarded, the second ground of demurrer was well taken.

The bill places the complainant’s claim upon the ground that, by the contract, he was entitled to the half of the proceeds of the sale, as a compensation for his services; and it states the amount specifically to which he is entitled, subject to a deduction of one thousand six hundred dollars, and for the sum . to be allowed for expenses which he had undertaken originally to incur, but which were not incurred in consequence of the new agreement dispensing with them, which are stated not to be exceeding three hundred dollars. According to the statements of the bill, the matters of debit and credit were distinctly fixed, and the only matter not ascertained was, the sum to be deducted for the expenses not incurred* It is plain that that was a matter susceptible of proof before a jury as upon a quantum meruit; and the entire claim is such as is every day the subject of suits at law. It is an account for a fixed and stated sum due upon a special contract, with a credit for a fixed sum and also for an amount fully capable of ascertainment by a jury. On what ground, then, can a court of equity take jurisdiction of such a claim ? There is no necessity for invoking its aid on tbe ground of stating an account between the parties, for that could be done more readily and with less expense by a trial before a jury.

It is said tbat tbe transaction between tbe parties amounts to a partnership. But it is not every indebtedness between partners that calls for the interposition of a court of equity; and it is as well settled in sucb transactions, as in those between other parties, tbat a court of equity will not interpose where the remedy is complete and adequate at law. When a transaction between partners depends upon a mere matter of account and contract, and is susceptible of full ascertainment at law, equity will not interfere with that jurisdiction. Here the transaction is plain and simple, not involving a statement of complicated partnership accounts, and having no feature taking it out of tbe jurisdiction of a court of law. If tbe jurisdiction of a court of equity were maintained in this case, it is difficult to conceive a case of an account where such jurisdiction would not be entertained.

We are, therefore, satisfied that this ground of demurrer was well taken, and the decree is reversed, the demurrer sustained, and the bill dismissed.