, 1892-07-07
TWO DECISIONS.
PIERCE REVERSED.

GAENACuA LAAA
[All decisions of the supreme court will
appear in THE DAILY and WEEKLY TRIB
UNE.
Rollin A. Case, appellant VS.. Fred Segal
and Emma Seger, his wife. respondents
From Pierce coupty-NO. 465, filed July
6, 1892.
A careful investigation of the testimony
in this case leads us to the conclusion that
it was the agreement and intention of the
parties at the time of the purchase of the
land described in the complaint and an
sWer, including the northeast quarter OF
the southeast quarter and southwest quar-
ter of southeast quarter of section 5, town
ship Is north, range east of the William
cite meridian, and the southwest quarter
of the northeast quarter, west half of the
southeast quarter and the east half of the
northwest quarter of section 5, township
% north, range 4 east of the Willamette
meridian, that said lands were purchased
for the benefit of the partnership aud that
it was the understanding that the land
was to be sold for the benefit of the part
nership, and that the profits were to be
equally divided between the partners, not
Withstanding the fact that the title to the
land was taken in the name of Seger, And,
without particularly analyzing the testi-
mony in this opinion, it is sufficient to say
that the actions of both the parties, as
shown in the testimony, including the
books, correspondence and Conversations
lead us irresistibly to this conclusion.
This only leaves one legal question to
be determined. 1t is cOntended by the
respondents that an agreement to pur-
chase and sell land, which is not in
visions of the statute of frauds, and can
not therefore be enforced. While the
appellant contends that parole agreement
of this kind can be enforced, it cannot be
questioned that there is conflict ofdecision
on this point. The leading case relied
upon by respondents is Smith VS.. Bnrn-
ham, Sd Summer 435, where it was held
that parole agreement to become partners
in the business of purchasing and selling
lands and lumber, Is parole contract re-
specting an interest in lands, and void by
the statute of frauds, so that it will not be
enforced by court Of equity This case is
elaborately argued and the authorities
bearing on the subject cited and analy-
zed.
The leading case in favor of respondents
contention is Dale VS.. Hamilton, Hare
1863, where the general doctrine is announc-
ed that a partnership agreement between
A and B, that they should be Jointly in
terested in a speculation for the buying
and improving land for sale, may be
proven without being evidenced by writ
ing, signed by or by the authority of, the
party to be charged Herewith is not with
in the statute of frauds, and such an
agreement being proven A or may estab-
lish his interest in land subject to the
partnership without such interest being
evidenced by any writing. We think the
weight of authority, and especially mod
ern authority, supports Dale VS.. Hamilton,
and we are inclined to follow the doctrine
there announced. See the authorities
cited in that case, and also
Chester VS.. DickersOn, 54 N. Y. 1.
We Rnr
Flower VS.. Barnekof, % Pac. Rep. $40,
and cases cited.
But we do not think this case necessarily
falls within the decision in Smith VS..
Burnham for, according to the view we
take of the testimony, it is the case of a
purchase paid out of the funds of an exist
ing partnership for partnership purposes
1t is an executed contract, and,even accord
ing to Smith VS.. Burnham a resulting
trust will arise by operation of law in favor
of the party or parties advancing the
money.
With this view of the law and the testi-
mony the Judgment will be reversed and
the cause remanded to the lower court
with instructions to treat the property
above described as partnership property,
and to proceed to a determination of the
rights of the parties on that basis.
DUNBAR ].
We concur: Anders, j.; Hoyt, J.;
Scott j.; Stiles, j.