Benjamin v. Zell

Mr. Justice Mercur

delivered the opinion of the court, October 2d 1882.

The statute of frauds is no bar to a recovery under the facts found by the jury. The verdict has settled the conflicting evidence, and taken the ease out of the statute. It has established as a fact that the recovery is not for land purchased of the defendants in error; but for profits made by the plaintiff in error on lands he purchased of one Hahn, through the aid and assistance of the defendants in error. The claim is not for consideration money which he agreed to pay for title which he acquired to the land ; but for profits which he afterwards acquired by a sale thereof. The obligation to pay the claim in contention in no manner affected the title which he acquired and held. It was wholly contingent on his selling the land for a sum larger than he paid therefor. Then only was he to pay the defendants in error for their services. Their claim is on a contract for services. His liability originating in the contract became fixed and determined on liis sale at a profit. An interest in contingent profits arising from a sale to be thereafter made, does not give an interest in the land itself: Smith v. Watson, 2 Barn. & Cress. 401. These facts relieve the case from the operation of the statute of frauds: Hess v. Fox, 10 Wend. 436 ; Bruce v. Hastings, 41 Vt. 380; Trowbridge v. Wetherbee, 11 Allen 361. The cases cited by the plaintiff in error are not applicable to the facts found in this case. It is not necessary to review them.-

It is further objected that this suit was prematurely brought, inasmuch as the plaintiff in error took promissory notes for the consideration money, and .they were not paid when the suit was commenced. When asked to settle, after he sold, and before suit brought, he made no such objection. Neither then nor on the first tria.1 of the case uoes it appear that his refusal was put on the ground that he had not actually received all the money. The whole defence appears to have been a denial of the agreement alleged by the defendants in error, and now found by the jury. His receipt at the foot of the deed which he had executed, admitted the receipt of the consideration money. He took the promissory notes as money. They were put in bank and all paid at maturity. He made no offer to turn over any of the notes, nor any request for defendants in error to wait until they were all paid. If he had not sold the notes, which does not clearly appear, he was willing to hold them as money. For many purposes, negotiable'notes given in satisfaction of a debt, may be considered as money. They will support a count for money paid : Morrison v. Berkey, 7 S. & R. 246; and for money expended to the defendant’s use: Craig v. Craig, 5 Rawle 91. So, when goods are sold on credit, the vendee to give his note, and after the goods are delivered refuses so to do, an action may be maintained for a breach of the contract before the expiration of the credit, and the price of the goods is the measure of damages : Girard v. Taggart, 5 S. & R. 19; Rinehart v. Olwine, 5 W. & S. 157. A denial of the contract in toto, is a violation of every part thereof. We discover no error in the charge of the court', nor in the entry of judgment on the verdict.

Judgment affirmed-.