The Chancellor.
It is not necessary in this stage of these causes to enter at length into a detailed statement of the pleadings, and the very voluminous proofs, and exhibits which the cases present.
The first question presented, which it is necessary to decide before the accounts are stated, is, did Millard comply with the conditions of the articles of copartnership by furnishing goods to the amount of $7000, and thus entitle himself to the one third of the real estate and to an equal share of one third in the effects and profits of the copart[390]*390nership. An inventory is exhibited, by which it appears that the cost of the goods furnished by him was $5,389 54 exclusive of the cost of transportation, insurance, &c., and that a general charge was added (j1¡rty.(j,ree an(j one-third per centum for freight, purchase of goods, insurance, &c., making $1,796 51, which two sums, make in all $7,186 05.
It appears by the proofs in the cause that from eight to ten per ct. should cover these charges.
It becomes necessary to determine the question whether the goods thus furnished were accepted and received by Matthews and Bond as a fulfilment of this part of the agreement on the part of Millard. It may be proper to say from my view of the terms of the contract that if Matthews and Bond had dissented at the time the goods were furnished, and refused to proceed further until the question of the amount to be charged for purchasing the goods, freight, &c., had been settled and the deficit supplied, they would have been entitled to have' the amount of goods stipulated for, at cost and reasonable charges and expenses without any addition by way of profit.
But from the testimony of King and C. D, Millard, confirmed to some extent by that of John Williams there are strong grounds of probability that the exhibit containing an inventory of goods, and in which this charge of $1796 51 occurs, was the one used at the time the goods were received at Dexter.
The testimony of Cyrus Loomis of the admission of Matthews, that Millard had fulfilled on his part, confirmed as it is by the prominent fact that the deed of the one third, part of the property was executed by both Matthews and Bond some time after the goods were received, without any further stipulation or reservation, altogether furnish a very strong presumption that the parties themselves regarded this part of the contract as fulfilled and settled. Whatever may have been the fact, in a doubtful question of this kind, it is much the most safe to abide by the unequivocal acts of the parties themselves, than at this late period to attempt to open this matter.
That the parlies executed and delivered the deed, admits of no doubt.
[391]*391As to the alleged agreement for the purchase of the interests of the heirs of Bond.
It is urged that this agreement is made out by the answer of Millard, and that it is taken out of the statute af frauds by part perfor, manee. Millard, the defendant in the first suit, and complainant in the other, insists ip his answer in the one case, and in his bill in the other, that it was agreed between himself and Matthews after the death of Bond, that the interests of the heirs of Bond should be pur-, chased by Matthews for the benefit of both. This is denied in the most positive terms by the answer of Matthews, in the second suit. It was insisted at the argument that Millard’s answer being responsive to, the bill and not disproved, must be taken as true. Matthews alleges in his bill his right tó certain shares purchased of the heirs of Bond. This Millard denies, arid by way of avoidance, sets up this independent contract by way of showing himself entitled to the one half of these shares. This, I am inclined to regard as not coming within the rule of being directly responsiye to the allegations of the bill. It sets out a new contract, and should be proved. The testimony of the witnesses is not positive and conclusive. They do not testify as to the terms used by the parties in making the contract.
O. D. Millard says in general terms that it was agreed that the interests should be purchased far the benefit of both, as he understood it: giving the understanding of the witness and not the words used by the parties.
The testimony of B. King, as to the purchase, is still less explicit.
It seems strange that a transaction p,f this importance should have taken place without a written contract, or at least a verbal one more clear and explicit. It has rather the appearance of a conversation in relation to a contract, than a clear definite and complete agreement.
No entry on the subject is made on the books. The money is paid entirely by Matthews ; no charge is made to Millard or to the firm ; and the title is tajien to Matthews individually.
The claim as alleged is for an interest ip the entire shares purchased of the heirs of Bond. The testimony relates only to the shares of the heirs residing in Massachusetts, while several others were resident in the immediate vicinity of Dexter, It will be perceived that [392]*392p^e contract is not proved in that clear, full and precise manner, which has uniformly been required as the first step toward the estabof a parol contract for the conveyance of lands. . , ,
. , , it the contract bo vague and uncertain, or the evidence to establish it insufficient, a Court of Equity will not enforce it, but will leave the party to his legal remedy. Colson vs. Thompson 2 Wheat. R. 336 (S.C. 4 Pet Cond. R. 14.3.) It was however insisted that there had been such unequivocal acts of part performance as would confirm the existence of the contract and take it out of the operation of the statute.
These acts consist principally in certain improvements upon the property after the death of Bond, by the surviving partners and without keeping an account of their expenditures. The rule is that the act of part performance must unequivocally result from the agree, ment alleged. See Burtch vs. Hogge ante 31 andn 1, 2; Bomier vs. Caldwell ante 67; McMurlrie vs. Bennett, 124. It may have been so in this case ; but this is not one of those cases where the acts must necessarily have resulted from this agreement, and are inconsistent with any other.
It will bo perceived that from the view I have taken of this portion of the cause, this is not a case of a parol contract clearly proved and partly performed, which calls upon this court to decree a specific performance. It is not clearly and distinctly proved. It is positively denied by Matthews. The money was all paid by him and no charge made, either to Millard or to the firm. The title deeds were all taken in his name, and it at least presents such a case of doubt as admonishes this court of the danger of interfering to decree the performance of a contract which may never have had an existence.
Matthews, although he denies any new agreement, says he believed at the time he was bound to continue the partnership. It is not' going too far I think, to regard this to have been the understanding of the parties as the interests were subsequently vested in Matthews, to accord to them an equal interest in the profits after the death of Bond.
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The Chancellor.
It is not necessary in this stage of these causes to enter at length into a detailed statement of the pleadings, and the very voluminous proofs, and exhibits which the cases present.
The first question presented, which it is necessary to decide before the accounts are stated, is, did Millard comply with the conditions of the articles of copartnership by furnishing goods to the amount of $7000, and thus entitle himself to the one third of the real estate and to an equal share of one third in the effects and profits of the copart[390]*390nership. An inventory is exhibited, by which it appears that the cost of the goods furnished by him was $5,389 54 exclusive of the cost of transportation, insurance, &c., and that a general charge was added (j1¡rty.(j,ree an(j one-third per centum for freight, purchase of goods, insurance, &c., making $1,796 51, which two sums, make in all $7,186 05.
It appears by the proofs in the cause that from eight to ten per ct. should cover these charges.
It becomes necessary to determine the question whether the goods thus furnished were accepted and received by Matthews and Bond as a fulfilment of this part of the agreement on the part of Millard. It may be proper to say from my view of the terms of the contract that if Matthews and Bond had dissented at the time the goods were furnished, and refused to proceed further until the question of the amount to be charged for purchasing the goods, freight, &c., had been settled and the deficit supplied, they would have been entitled to have' the amount of goods stipulated for, at cost and reasonable charges and expenses without any addition by way of profit.
But from the testimony of King and C. D, Millard, confirmed to some extent by that of John Williams there are strong grounds of probability that the exhibit containing an inventory of goods, and in which this charge of $1796 51 occurs, was the one used at the time the goods were received at Dexter.
The testimony of Cyrus Loomis of the admission of Matthews, that Millard had fulfilled on his part, confirmed as it is by the prominent fact that the deed of the one third, part of the property was executed by both Matthews and Bond some time after the goods were received, without any further stipulation or reservation, altogether furnish a very strong presumption that the parties themselves regarded this part of the contract as fulfilled and settled. Whatever may have been the fact, in a doubtful question of this kind, it is much the most safe to abide by the unequivocal acts of the parties themselves, than at this late period to attempt to open this matter.
That the parlies executed and delivered the deed, admits of no doubt.
[391]*391As to the alleged agreement for the purchase of the interests of the heirs of Bond.
It is urged that this agreement is made out by the answer of Millard, and that it is taken out of the statute af frauds by part perfor, manee. Millard, the defendant in the first suit, and complainant in the other, insists ip his answer in the one case, and in his bill in the other, that it was agreed between himself and Matthews after the death of Bond, that the interests of the heirs of Bond should be pur-, chased by Matthews for the benefit of both. This is denied in the most positive terms by the answer of Matthews, in the second suit. It was insisted at the argument that Millard’s answer being responsive to, the bill and not disproved, must be taken as true. Matthews alleges in his bill his right tó certain shares purchased of the heirs of Bond. This Millard denies, arid by way of avoidance, sets up this independent contract by way of showing himself entitled to the one half of these shares. This, I am inclined to regard as not coming within the rule of being directly responsiye to the allegations of the bill. It sets out a new contract, and should be proved. The testimony of the witnesses is not positive and conclusive. They do not testify as to the terms used by the parties in making the contract.
O. D. Millard says in general terms that it was agreed that the interests should be purchased far the benefit of both, as he understood it: giving the understanding of the witness and not the words used by the parties.
The testimony of B. King, as to the purchase, is still less explicit.
It seems strange that a transaction p,f this importance should have taken place without a written contract, or at least a verbal one more clear and explicit. It has rather the appearance of a conversation in relation to a contract, than a clear definite and complete agreement.
No entry on the subject is made on the books. The money is paid entirely by Matthews ; no charge is made to Millard or to the firm ; and the title is tajien to Matthews individually.
The claim as alleged is for an interest ip the entire shares purchased of the heirs of Bond. The testimony relates only to the shares of the heirs residing in Massachusetts, while several others were resident in the immediate vicinity of Dexter, It will be perceived that [392]*392p^e contract is not proved in that clear, full and precise manner, which has uniformly been required as the first step toward the estabof a parol contract for the conveyance of lands. . , ,
. , , it the contract bo vague and uncertain, or the evidence to establish it insufficient, a Court of Equity will not enforce it, but will leave the party to his legal remedy. Colson vs. Thompson 2 Wheat. R. 336 (S.C. 4 Pet Cond. R. 14.3.) It was however insisted that there had been such unequivocal acts of part performance as would confirm the existence of the contract and take it out of the operation of the statute.
These acts consist principally in certain improvements upon the property after the death of Bond, by the surviving partners and without keeping an account of their expenditures. The rule is that the act of part performance must unequivocally result from the agree, ment alleged. See Burtch vs. Hogge ante 31 andn 1, 2; Bomier vs. Caldwell ante 67; McMurlrie vs. Bennett, 124. It may have been so in this case ; but this is not one of those cases where the acts must necessarily have resulted from this agreement, and are inconsistent with any other.
It will bo perceived that from the view I have taken of this portion of the cause, this is not a case of a parol contract clearly proved and partly performed, which calls upon this court to decree a specific performance. It is not clearly and distinctly proved. It is positively denied by Matthews. The money was all paid by him and no charge made, either to Millard or to the firm. The title deeds were all taken in his name, and it at least presents such a case of doubt as admonishes this court of the danger of interfering to decree the performance of a contract which may never have had an existence.
Matthews, although he denies any new agreement, says he believed at the time he was bound to continue the partnership. It is not' going too far I think, to regard this to have been the understanding of the parties as the interests were subsequently vested in Matthews, to accord to them an equal interest in the profits after the death of Bond.
Hence it will result that in taking the accounts Millard must be regarded as having fulfilled on his part the original agreement, and to ho entitled to one third of the real estate, and to one third of the profits of the copartnership to the death of Bond, and that the accounts [393]*393be stated to that period. That thereafter the survivors Millard and Matthews share and share alike in the profits. That the legal representatives of Bond be credited with interest upon their share of the capital, and a reasonable rent for their proportion of the real estate from that period to be ascertained by the master. And as it appears that the repairs and improvements made to the real estate, were necessary and useful, and were made with the concurrence of Matthews jii whose estate these shares are now vested that the representatives of Bond are to be charged in the account with one third of their Cost, and that further directions bo reserved until the Coining in of the report
July 11, 1840 a rehearing was granted upon petition filed for that purpose, and an order granted staying all proceedings until the rehearing should bo had. The following is the opinion of the Chancellor on the rehearing:
The Chancellor. — Most of the questions raised upon the re-hearing of this cause were considered and disposed of when the case was before the court upon the-first hearing. It is not necessary therefore to again go through the details of this complicated case. Upon are-view, I must confess I have had more hesitation and doubt upon the question as to whether Matthews ought not to bo held and considered as having purchased the interest of the deceased partner for the benefit of the firm, and an equal division made, both of the property and profits, after the re-payment of the money paid by him for the purchase of this interest.
But as there is no reasonable doubt from the entire case that the purchase money was paid by Matthews, no charge or memorandum made on that account in the books, and no written contract or memorandum between the parties; it is perhaps, if there be an error, erring on the side of safety to adhere to the views there expressed upon this point, although it is with some doubt and hesitation. But the point made upon the rehearing, and to which the'petitioners must be confined, is, that the representatives of the heirs of Bond are entitled to their election, to take either interest or profits upon that share. It was held upon the former occasion as well from the pleadings and proofs as from the whole course of the business of this firm, that it was understood and agreed, on the part of Matthews that this part[394]*394nei'ship should be continued, and that each party were entitled to share alike after the death of Bond.
The interest of Bond being vested in Matthews, to give him or his Representatives this option now Would be contrary to what, front the 'entire case, taust be inferred, was the contract and un'derstandihg of these partners, inequitable and unjust.
Of thé general rule that the ropresentativés of a deceased partner have this election, when thé partnership is continued without their assent, there is no doubt.
But here this interest is vested in one of the partners who has consented to the continuance of this copartnership ; the reason of thé rule ceases, and he cannot be permitted to share in a manner different from, and in violation of the manifest understanding of the parties-.
Although not embraced in the petition for a rehearing, it is urged that rent, instead of interest, should be charged upon the share in the mills, and real estate originally belonging to Bond. Such was my first impression.
The whole matter of the negotiation after the death of Bond, is left very obscure ; no terms or conditions satisfactorily established in the pleadings or proofs. The master, in fixing upon a reasonable rent, must, in fact resort to the profits made by the mills Which formed the principal business of this copartnership, and it will, in fact, by •changing 'the decree in this respect be but allowing profits by another name, which the case made, will neither call for nor justify.
There is much that is obscure in this case, but upon the whole I think that the equity of the case does not call for or justify the relief sought for by the petition fora rehearing.
Motion denied, and the order for a stay of proceedings vacated.