#### Doras Stiles *versus*Justin Campbell.

Where two had agreed to purchase certain merchandise jointly, and one of them took to himself the whole of the merchandise, selling part, and appropriating the rest to his own use, he was holden liable to the other for his proportion of the net profits of the purchase.

The declaration in this case was in *assumpsit,*and contained, besides a special count, a count also for money had and received. The action was tried upon the general issue, April term, 1813, before the present chief justice.

The case, as proved at the trial, was, that the plaintiff and de fendant being in *Boston*in the spring of 1811, a conversation was had between them, about the purchase of a quantity of saltpetre, which was offered for sale by *P. T. Jackson;*in which conversation the defendant proposed that the plaintiff should join him in the purchase, stating his expectations that it would be a profitable contract ; but that he did not wish to take the whole. The [ * 322 ] defendant went * with the plaintiff to the store of Mr.

*Jackson,*to examine the saltpetre; and Mr. *Jackson*then stated the terms upon which he would sell it, and gave the refusal of it for ten days ; within which time, if the security prescribed by him was produced, the contract was to be completed, and the saltpetre delivered. On the return from *Boston*of the plaintiff and defendant in the stage, they conversed together as joint purchasers of the saltpetre; and it was explicitly understood that the defendant was interested in two thirds, and the plaintiff in one third, of the purchase. Mr. *Jackson*had required of them the security of the Messrs. *Dwights,*of *Springfield,*or the house of *Woodbridge 8f Talcott,*in *Hartford.*On the plaintiff’s return home, he applied to a Mr. *Lewis*to assist him in procuring his proportion of the security of the purchase money, and he undertook, upon some agreement with the plaintiff for compensation, to be responsible to the Messrs. *Dwights*for one third part of the sum they should guaranty, and for this purpose wrote to them by the defendant, who went to *Springfield*to treat with them. The terms required by the *Dwights*being, in the opinion of the plaintiff and defendant, too high, the defendant proposed to the plaintiff that he, the plaintiff, should go to *Hartford*to obtain the necessary security of *Woodbridge &f Talcott.*This being inconvenient to the plaintiff, he declined. The defendant then proposed to go himself, provided the plaintiff would advance him some money to pay his expenses. And two witnesses testified that the defendant, upon receiving *295money from the plaintiff to pay his expenses, agreed to go to *Hartford,*and get the security himself; and it was further agreed that the plaintiff and *Lewis*should go down to *Springfield,*in order to meet the defendant on his return from *Hartford,*with an intention, if he had failed of success there, to accept of the terms of the *Dwights,*and get the security from them. A letter was written by *Lewis*to *Woodbridge 8f Talcott,*proposing, as he had done to the *Dwights,*to be responsible for one third of the money, if they should guaranty the purchase money to Mr. *Jackson*at *Boston.*

The defendant went to *Hartford*and * procured the [ * 323 ] guaranty of *Woodbridge &f Talcott,*having delivered to them the letter of Lewis; but other security was furnished them by *Campbell*for the whole sum guarantied by them, although it did not appear in evidence that they were dissatisfied with the security of *Lewis*for the one third. The parties met at *Springfield*on the defendant’s return from *Hartford,*and he there informed the plaintiff and *Lewis*of his success at *Hartford,*and showed them the guaranty of *Woodbridge Talcott,*which was for the whole or a part of the purchase money, as might be necessary. The defendant then requested the plaintiff to procure the guaranty of the *Dwights*for his third part. To this the plaintiff objected, stating that, as the defendant had obtained security for the whole, it was unnecessary; but added, that, if the defendant would go to *Boston,*and complete the bargain, and get possession of the saltpetre, he would pay him one third part of the expenses. The defendant did not expressly assent to the proposition ; but immediately got into the stage, went to *Boston,*and, on the 3d of April, closed the bargain with Mr. *Jackson,*and shipped the saltpetre to *Hartford,*to the care of *Wood-bridge &f Talcott.*He had before this, however, contracted with Messrs. *Pitkin &/■ Co.*to sell them a quantity of the saltpetre, which was to be delivered to them in *Boston.*Another quantity was after-wards sold by the defendant. Both the parcels yielded a handsome profit; and the whole could have been sold at the same rate. The residue was manufactured by the defendant at his own works.

The defendant’s counsel objected that the action could not be maintained upon these facts; because, if there was any contract, it was between the plaintiff and defendant as partners ; because it was not proved that the plaintiff had furnished any part of the security for the purchase ; but that the contrary appeared from the evidence; and because, as to part of the saltpetre, the defendant had not disposed of it, or received any money therefor; and so the count for money had and received could not be supported with respect to that part. *296[ * 324 ] * The judge instructed the jury that, if they were satisfied that an agreement was proved between the parties to purchase the saltpetre together, and that the defendant agreed to go to *Hartford*and obtain security for the whole upon receiving money from the plaintiff, and that he assented to go to *Boston*and complete the bargain upon the plaintiff’s offer to pay him one third of the expenses, they ought to find a verdict for the plaintiff for one third part of the net profits of the purchase and sale. Evidence was given of the proper deduction from the gross profits; and the verdict was returned for the plaintiff upon the principles above stated, the same being applied to the count formón ey had and received. The defendant moved for a new trial, on account of the misdirection of the judge, and because the action does not lie.

*Bliss*and *Mills*for the plaintiff.

*Ashmun*for the defendant.

Parker, C. J.

It seems difficult to discern any reason why a bargain entered into so deliberately between the two parties in this case, should not be carried into effect according to its true intent at the time it was made.

It cannot be doubted that the defendant considered the plaintiff as his partner, while the purchase was in treaty in *Boston,*while the parties were on their way home, while the defendant, with the assistance of the plaintiff, was obtaining the security necessary to complete the purchase, and even down to the time when the defendant left *Springfield,*with a view to go to *Boston*and close the bargaiij with Mr. *Jackson:*From that time, however, the defendant kept aloof, perceiving that a profitable speculation had been made, and dishonorably contriving to secure the whole advantage of it to himself.

There was no stipulation in writing; but a verbal engagement is equally binding in cases not within the statute of frauds, provided a consideration subsists between the parties. Now, in this case, the contract was in part executed by the transactions which [ * 325 ] took place before the actual sale of the saltpetre * by Mr. *Jackson;*and the expense of the plaintiff in his journeys, his endeavors to obtain sureties, the payment towards the expense of going to *Hartford,*all together amount to a legal and sufficient consideration, entitling the plaintiff to his share of the benefit of the contract, the amount of which was equitably settled by the jury, a proper deduction having been made from the gross profits for the expenses, labor, &c., of the defendant, in carrying the contract to a successful issue.

*297Judgment must therefore be rendered upon the verdict, with interest, as additional damages, to the present time, (a)

(a)

*Fanning*vs. *Chadwick,*3 *Pick.*420. — *Brinley & Al.*vs. *Kupfer,*6 *Pick.*179. — *Johnson*vs. *Ames,*7 *Pick.*59. — *Wilby*vs. *Plinney,*15 *Mass. Rep.*116. — *Jones*vs. *Harraden,*9 *Mass. Rep.*540.