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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 5 It cannot be questioned that two or more persons may become partners in buying and selling land. There *Page 7 is nothing in the nature or essence of a partnership which requires that it should be confined to ordinary trade and commerce, or to dealings in personal property. (Story on Part., §§ 82, 83; Collyer on Part., §§ 3, 51, and note; Dudley v.Littlefield, 21 Maine, 418; Sage v. Sherman, 2 N.Y., 417;Mead v. Shepard, 54 Barb., 474; Pendleton v. Wambersiu, 4 Cranch, 73; Thompson v. Bowman, 6 Wal., 316; Hoxie v.Carr, 1 Sumner, 173.) KENT says, "a partnership is a contract of two or more persons to place their money, effects, labor and skill, or some or all of them, in lawful commerce or business, and to divide the profit and share the loss in certain proportions; and that it is not essential to a legal partnership that it be confined to commercial business. It may exist between attorneys, conveyancers, mechanics, owners of a line of stage-coaches, artisans or farmers, as well as between merchants and bankers" (3 Kent's Com., 24, 28); and why may it not exist between dealers and speculators in real estate?
But, as it is claimed that the partnership in this case existed by parol before the execution of the written agreement, dated November 28, 1864, it is necessary to inquire whether a partnership, in reference to lands, can be formed and proved by parol. Upon this question there is considerable conflict in the authorities. On the one hand it is claimed that a parol agreement for such a partnership would be within the statute of frauds which provides that no estate or interest in lands shall be created, assigned or declared, unless by act or operation of law, or by a deed or conveyance in writing subscribed by the party creating, granting, assigning or declaring the same; and to this effect is the case of Smith v. Burnham (3 Sumner, 345). On the other hand it is claimed that such an agreement is not affected by the statute of frauds, for the reason that the real estate is treated and administered in equity as personal property for all the purposes of the partnership. A court of equity having full jurisdiction of all cases between partners touching the partnership property, it is claimed that it will inquire into, take an account of, and administer upon all *Page 8 the partnership property, whether it be real or personal, and in such cases will not allow one partner to commit a fraud or a breach of trust upon his copartner by taking advantage of the statute of frauds; and to this effect are the following authorities: Dale v. Hamilton (5 Hare, 369); Essex v.Essex (20 Beaven, 449); Bunnell v. Taintor (4 Conn., 568). A full discussion of the question is found in Dale v.Hamilton; and the reasoning and review of the cases there by Vice-Chancellor WAGRAM are quite satisfactory. The general doctrine is there laid down that "a partnership agreement between A. and B. that they shall be jointly interested in a speculation for buying, improving for sale and selling lands may be proved without being evidenced by any writing, signed by or by the authority of the party to be charged therewith within the statute of frauds; and such an agreement being proved, A. or B. may establish his interest in land, the subject of the partnership, without such interest being evidenced by any such writing." I am inclined to think this doctrine to be founded upon the best reason and the most authority. But whether it is or not, it is not very important to decide in this case. Most of the conflict in the authorities has arisen in controversies about the title to the real estate after the dissolution of the partnership or the death of one of the partners. But suppose two persons, by parol agreement, enter into a partnership to speculate in lands, how do they come in conflict with the statute of frauds? No estate or interest in land has been granted, assigned or declared. When the agreement is made no lands are owned by the firm, and neither party attempts to convey or assign any to the other. The contract is a valid one, and in pursuance of this agreement they go on and buy, improve and sell lands. While they are doing this, do they not act as partners and bear a partnership relation to each other? Within the meaning of the statute in such case neither conveys or assigns any land to the other, and hence there is no conflict with the statute. The statute is not so broad as to prevent proof by parol of an interest in lands; it is simply aimed at the creation *Page 9 or conveyance of an estate in lands without a writing. If there was a parol agreement in this case before the written one, it was just like the one embodied in the writing, to wit, a partnership to purchase, lease and take refusals of land and then sell, lease or work them for the joint benefit of the parties. This is not a controversy about the title to any of the lands taken or owned by the partners, but it simply relates to the conduct of the defendants while they were acting as partners; and in such a case the statute of frauds certainly can present no obstacle to relief.
We then come to the question whether there was sufficient proof of the existence of this partnership by parol before the 28th of November, 1864, and I cannot doubt that there was. Jones distinctly testified that the partnership between all the defendants did exist as early as September, and that it was afterward put into writing. Neither Reed nor Dickerson, in their testimony, denied this, and neither of them claimed that they did not become partners until the writing was executed. There is abundant evidence that Reed was associated with Jones as early as the latter part of September, or the fore part of October. It does not appear how or by what negotiation the members of the firm were brought together in partnership, and it does not appear through what agency Dickerson was induced to join with the others. As to him, all we have is the evidence of Jones, above referred to, and the writing, and the fact that he, subsequently, without objection, in the division of the money received from the plaintiffs, allowed his share of the sums paid for the services of Higgs, who was employed to pour oil upon the lands, from some time about the first of September. Hence, we must take it as proved, in this case, that this partnership existed as early as September, 1864. But it is claimed, on the part of the appellants, that all the rules of commercial partnerships do not apply to a partnership in real estate. They apply to every other kind of partnerships, and why not to this? This kind of partnership is formed like every other, for the mutual profit and advantage of the *Page 10 parties, and there is no reason why it should not be governed by the same rules.
In all partnerships one partner is the general agent of all the partners for the transaction of all the partnership business, and I can perceive no reason for not applying the same rule of agency to partnerships in real estate. In fact, all the powers, duties and rights which usually appertain to partnerships, must appertain to partnerships in real estate, except as they are modified by the character of the property; and the only difference grows out of the rules of law in reference to the conveyance and transmission of real estate. One partner cannot convey the whole title to real estate unless the whole title is vested in him. (Van Brunt v. Applegate, 44 N.Y., 544.) But he can enter into an executory contract to convey, which a court of equity will enforce. While a contract for the conveyance of land must be in writing, yet an agent to execute the contract may be appointed by parol. (Willard on Real Estate, 376.) And hence, when the partnership business is to deal in real estate, one partner has ample power, as general agent of the firm, to enter into an executory contract for the sale of real estate. I find no authority holding that the rules of ordinary commercial partnership do not apply to partnerships in real estate, except the case of Pitts v. Waugh (4 Mass., 424). It was there held that the law merchant respecting dormant partners did not extend to speculators in land. The learned judge writing the opinion did not cite any authority for the decision he made, and his reasons for the conclusions which he reached are not satisfactory.
Dormant partners are held liable for the debts and contracts of the firm, because they are, in fact, members of the firm, and share in its profits, and the law will not allow them secretly to share in the profits of the firm without taking their share of the risks and bearing their share of the losses, as to third persons. And there is precisely the same reasons for holding a dormant partner in a real estate partnership liable to all persons dealing with the firm. In Patterson v. *Page 11 Brewster (4 Ed. Ch. R., 322), the vice-chancellor expressed the opinion that the law merchant does not apply to partners in buying and selling land. This case and Pitts v. Waugh, are commented on by Judge MITCHELL in Bemus v. Harrison (19 Barb., 53), and are there shown not to be precise authority for the doctrines announced. It follows, therefore, that the court committed no error in holding that all the partners were liable for the frauds committed by either in the transaction and prosecution of the partnership enterprise, for it is well settled that the firm is bound for the fraud committed by one partner in the course of the transactions and business of the partnership, even when the other partners have not the slightest connection with, or knowledge of, or participation in the fraud. (Story on Part., § 108; Collyer on Part., § 445; Griswold v. Haven,25 N Y, 595.)
The conclusion I have thus far reached disposes of most of the important exceptions discussed upon the argument before us. It remains only to examine a few exceptions taken to the rulings of the judge at the trial as to evidence.
The plaintiffs, against the objection of the defendants, were permitted to prove that Jones and Higgs put oil upon these lands, both before the partnership was formed and after the lands were transferred to the plaintiffs. In this there was no error. The evidence all tended to reflect light upon the fraud complained of, and was competent for that purpose. The evidence of what Jones and Reed did before the partnership was formed and after the transfer, was at least competent against them. It was also competent to show that oil was placed upon the land at any time. Upon the question whether these were oil-producing lands as represented, the court instructed the jury that the plaintiffs could not recover for any representations made or acts of fraud committed before the partnership was formed or after the sale was made. The evidence, as limited by this instruction, was properly left for the consideration of the jury. Higgs testified that in January, 1865, Jones met him at the house of a Mr. Thorn *Page 12 and arranged with him that he should say "no" to everything he should ask him in the presence of Thorn; and that Jones on that occasion put two ten-dollar notes into his pocket, which he afterward showed to Thorn. Thorn was afterward called and testified that Jones and Higgs met at his house on the occasion spoken of, and that, after an interview between them, Jones first calling the attention of Thorn to what he was about to say, asked Higgs if he had been making known to the public that he had been throwing oil upon the lands, and that Higgs denied that he had; that Jones and Higgs then went out of his house, and in two or three minutes Higgs returned and took out of his pocket two ten-dollar bills and showed them to him. The last evidence, the showing of the bills, was objected to by the defendants. I can see no objection to the evidence. It was competent against Jones. It showed that he was trying to make evidence to cover up his fraud; and it was also competent as going to show payment by Jones for the services of Higgs in and about the fraud complained of, or for lying about it. It was not a declaration of Higgs. But right after the interview he showed the money, which he testified was given to him by Jones. It thus had a tendency to confirm his evidence, which was competent against Jones; and it was so near the time of the payment of the money to him by Jones and the interview between him and Jones, that it may fairly be treated as a circumstance connected with and part of the transaction.
On the trial Higgs testified that some of the oil which was placed upon the lands was brought to his house in tin cans; and Jones, in his evidence, denied all knowledge of and connection with these cans. On his cross-examination Jones was asked the following question: "Didn't you, on the 19th day of November, 1866, before Squire Phillips, of the town of Fishkill, testify that there was stolen from the barn of John W. Jones, at Fishkill Landing, in said town, one five-gallon tin can and one one-gallon tin can?" He answered, he did. He was then asked: "Did you testify or swear to these facts in an affidavit?" *Page 13 Defendants' counsel then objected to the inquiry as to what the witness swore to in an affidavit, and insisted that plaintiffs' counsel should produce the affidavit itself and show it to the witness. Plaintiffs' counsel thereupon produced the affidavit and showed it to the witness, who stated: "This is the affidavit I made," and offered and was about to read the same in evidence. Defendants' counsel then objected to the affidavit as irrelevant and immaterial, and the court said: "Put your question." Defendants' counsel said, "we except." The question was then put and the witness answered, "I did." The exception thus taken is now relied on. It is not well founded. The ground of the defendants' objection was that the affidavit should be produced and shown to the witness before he should answer the question. This was done; and after defendants' counsel objected to the reading of the affidavit the court allowed the witness to answer that he did state the facts in the affidavit. All seems to have been done that was required by defendants' counsel, and they should not now be permitted to claim that the affidavit should have been put in evidence. When he objected to the evidence the counsel did not claim that the affidavit should be put in evidence to show the facts contained in it, but his claim was that it should be produced and shown to the witness; and then he objected to the reading of the affidavit. The court had no reason to suppose that the exception finally taken was upon the ground that the witness was permitted to state what the affidavit contained, and that the affidavit itself was not read. This exception should not, therefore, be permitted to prevail.
I have thus examined all the allegations of error which I deem of sufficient importance to require consideration, and I reach the conclusion that the judgment should be affirmed, with costs.
All concur.
Judgment affirmed. *Page 14