#### Brown vs. Slauson.

*Agreement for sale of chattels*— Statute *of frauds.*

An agreement that defendant was to buy a vessel, pay tie purchase-money, and take the title in his own name, and was then to sell the plaintiff one-quarter of the vessel, *held*to he void under the statute of frauds.

APPEAL from tbe Circuit Court for *Racine*County.

Tbe complaint alleges, that, in August, 1865, at tbe city of Racine, tbe plaintiff1, *Martha*Brown, by ber agent John W. Brown (wbo was and is ber husband), entered into an agreement with tbe defendant, whereby plaintiff, by ber said agent, was to go to Cleveland, Ohio, and there inspect the baric “ Red, White and Blue,” and if tbe same was satisfactory to tbe agent, agree with tbe owner for tbe purchase thereof — defendant to pay tbe traveling expenses of said agent, and plaintiff, by ber said agent, to make such journey, inspection and agreement ; that, in case of an agreement of purchase with tbe owner of such bark, tbe purchase price thereof should be paid by defendant, and tbe title taken by him, and in consideration of tbe service so to be rendered by plaintiff, and of tbe agreements hereinafter mentioned, plaintiff was to have and receive from .defendant tbe title to one quarter of said vessel for a sum equal to one-quarter of tbe whole purchase price to be paid therefor, and said John W. Brown was to take charge of tbe vessel as master, with a salary equal to that usually paid for commanding vessels of ber class, and was to continue in command of said vessel until said quarter interest was fully paid for; said quarter interest to be paid for by tbe plaintiff as follows: by a quarter of tbe net earnings of tbe vessel, and such other moneys as plaintiff should see fit, from time to time, to advance and pay, until said interest should be wholly paid for, when defendant was to convey to tbe plaintiff a perfect title to said quarter interest. It is then alleged, that, pursu*245ant to said contract, plaintiff’s said agent proceeded to Cleveland, inspected tbe vessel and found ber satisfactory, and entered into a contract with tbe owner for tbe purchase thereof for $32,000; that defendant paid that sum, and toot tbe title in bis own name; that plaintiff furnished tbe time and expenses of ber said agent, and defendant paid bis traveling expenses; that immediately after tbe purchase, and pursuant to tbe agreement aforesaid, John "W. Brown toot charge of said vessel as master, and continued to command ber until August 20,1866, when defendant, without just cause, and in violation of said agreement, and without consultation, with the plaintiff, discharged him from tbe command of tbe vessel; that since such purchase, and up to tbe close of tbe sailing season of 1866, tbe bart has made about $19,000 net earnings, all of which defendant has appropriated to bis own use; that plaintiff has been at all times ready and willing to perform said contract on ber part; that on tbe 31st of December, 1866, she offered to fulfill it on ber part, and tendered to defendant ■ full peformance thereof, and demanded an account of said net earnings, and that one-quarter thereof be applied upon ber said contract of purchase, and offered to pay in cash to defendant any deficiency' due upon said purchase after such appbcation, and demanded of him a bill of sale of .an undivided quarter of said vessel, which defendant refused. It is further alleged, that, at tbe time said contract was entered into, she bad separate estate, upon the faith of which she entered into it; that she has ever since had such' separate estate; and that the cash offered as aforesaid was realized upon the credit thereof. , Damages in the sum of $10,000 are alleged, and a judgment therefor demanded.— The answer denies that John W. Brown, when he went to Cleveland to inspect said vessel and arrange for its purchase, did so in pursuance of any agreement between plaintiff and defendant; or that he took charge of the vessel in pursuance of any such agreement.

On the trial, John *~W.*Brown, as a witness for the plaintiff, *246testified that about tbe 1st of August, 1865, be bad agreed witb one Latbrop to look up a vessel that would cost $15,000 or $18,000, and if be could find one to suit, *Mrs. Brown*was to bave one-tbird, and witness was to sail tbe vessel until tbe price of said one-tbird should be paid; that *Mrs. Brown*was to pay down sucb money as sbe bad, and tbe balance was to be paid out of tbe earnings of tbe vessel; that on the 14th of tbe same month witness bad a conversation witb defendant, who proposed to take a third interest in tbe *“*Eed, White and Blue,” if that was agreeable to Latbrop and *Mrs.*Brown, *“*so that be could go in company witb them. And he said, if Mr. Latbrop didn’t wish to go in company, be (defendant) would purchase tbe whole vessel, and would sell my wife one-quarter, and sbe could pay what sbe wanted down, and the balance was to be paid out of tbe earnings of tbe vessel; it was to draw interest at 7 per cent; and I was to sail her as master until such time as sbe bad been paid for. Afterward tbe *‘*Eed, White and Blue ’ passed down through Detroit from Marquette. On tbe 17th of August, *Slauson*wanted me to go down and buy her, if sbe suited. He said be would purchase the vessel, and pay tbe money, and take tbe title in bis own name ; and that as soon as *Mrs. Brown*paid for one-quarter, he would make her a title, and sbe might pay what money she had, and tbe bal-, anee sbe could pay out of tbe earnings of tbe vessel.” Witness went to Cleveland and inspected tbe vessel, and on bis favorable report defendant paid the price asked, and took tbe title in bis own name; and witness took control of her as master soon after, according to defendant’s instructions, and under an agreement witb defendant that be was to run her as master upon a salary until plaintiff paid for said quarter interest; and he testifies that be would not bave taken charge of her except upon this agreement. This witness also testified, that in August, 1865, plaintiff bad separate property of her own, real and personal, worth about $22,000; that sbe still bad most of this *247property in December, 1866, wben sbe tendered to plaintiff payment for the quarter interest in said vessel; that the witness borrowed the money in her name to make said tender, offering to secure the same (if accepted by defendant) upon said quarter interest in the vessel. On cross-examination, he said that his wife had no separate property when he married her, and stated the methods by which the title to the above-mentioned property became vested in her; but, as the questions arising out of this evidence are not considered by this court, the evidence is omitted.

The court nonsuited the plaintiff; and she appealed.

*C. W. Berrmett,*with *Fuller & Dyer,*of counsel for appellant,

discussed at length the power of the plaintiff to 'engage in business on her own account, and contract for the purchase of a vessel. They further argued that the contract in this case was not void by the statute of frauds, because it was not an agreement by defendant to sell to plaintiff a quarter interest in the vessel', but an agreement between the parties to make a *joint purchase*of the vessel from a third party, to become tenants in common thereof, and *partners*in her earnings; and this action is for a breach, *not*of a contract of sale, but of an agreement to *convey*to the plaintiff a *title*which she purchased jointly with him — a title to property which she owned in equity when plaintiff took the legal title. This contract was, in effect, a copartnership agreement, each party having an interest in the earnings of the vessel. Is a contract of copartnership void, within the statute of frauds, simply because the legal title to personal property, out of which the profits arise, is taken in the name of an individual partner ? But suppose this is a contract of sale from defendant to plaintiff, still it is binding under subdivisions 2 and 3, § 3, chap. 107, E. S. 1. The plaintiff, by her agent, went into possession of the bark immediately upon its purchase. 2. If the consideration, or some part of it, to be paid for goods, be not money, but services, the performance of *248those services, being a substitute for the payment in money, fulfills the requirements of the third subdivision. Plaintiff furnished the time and services of her agent in going to Cleveland, inspecting the vessel, and agreeing with the owner upon the terms of purchase. Again, as part of the consideration, plaintiff’s agent was to take charge of the vessel as master, and this he did. Again, as fast as net earnings were made, they were to be applied to the payment for plaintiff’s quarter interest. The moment defendant received these earnings (all of which he has appropriated), one-quarter of them became a payment to that amount on the contract.

*John W. c& A. L. Gary,*for respondent,

argued, among other things,, that it did not appear from the evidence that the time and services of Mr. Brown formed any part of the consideration for the quarter interest which plaintiff claims to have contracted to purchase ; and she could not furnish the time and services of her husband, because in law they were his and not hers. 2. The evidence shows that Brown took possession *“*as master,” according to defendant’s instructions, and not as agent for his wife.

Cole, J.

Whether the property mentioned in the case could really be treated as the wife’s separate estate, having been derived from her husband in the manner it was : or whether, if it were her property, buying an interest in the vessel was incident to the proper disposition and enjoyment of her separate estate, are questions which need not be considered, since we' are satisfied that the alleged contract was void by the statute of frauds. To escape the force of this objection, it is claimed that the purchase of the bark was a joint purchase, made by the plaintiff and defendant together, and that they took possession of and owned the vessel as tenants in common. But the testimony fails to show that this was the contract. On the contrary, the husband, three or four times in his testimony, says, in *249effect, that the agreement was that *Slauson*was to buy the vessel, pay the purchase-money, and take the title in his own name; and that he was to sell *Mrs. Brown*one-quarter of the vessel, she paying what she could down, and the balance to be paid out of the earnings; the husband to sail the vessel until she was paid for. This is the substance of the agreement as testified to by Brown. The contract of sale, then, was between the plaintiff and defendant. There was no money paid upon this contract. It is true, the husband went to Cleveland to inspect the vessel and negotiate with the owner for the purchase thereof. But he tells upon what terms he went. He was to furnish his time, and *Slauson*was to pay his expenses. This was for the purpose of looking up a vessel, and before any purchase whatever was made. But when the vessel was purchased, it was purchased by the defendant, who took possession by his agent, the husband, as master. And the husband continued to sail the vessel for the defendant, until he was discharged in August, 1866. The agreement undoubtedly was, that he was to sell *Mrs. Brown*a one-quarter interest upon the conditions named. But, upon the facts of this case, that agreement cannot be enforced. It is strictly within the statute of frauds.

*By the Oowrt.*— The judgment of the circuit court is affirmed.