On Motion for Rehearing.
Counsel for appellants have. construed what was said in our opinion on original hearing as indicating- a conclusion reached to the effect that the enforcement of a parol contract to convey personal property is prohibited by our statute of frauds. That interpretation of our opinion is erroneous. We did not intend to so hold, and to remove any doubt upon that question we now say that the contrary of that conclusion is undoubtedly true.
Counsel also stress the allegations in plaintiff’s petition to the effect that a partnership was in fact formed by and between plaintiff, and the defendant, and insist that, as against a general demurrer, the petition-was sufficient to show that plaintiff was entitled to the relief sought in vso far as the oil drilling rigs were involved, even though it could be said that, by reason of the statute of frauds, no recovery could be awarded, based on defendant’s agreement to convey the oil leases to the partnership.
We overrule that contention for the following reasons: According, to allegations in.the petition, at the time the agreement to enter into the partnership was made, plaintiff owned two oil rigs, an undivided one-half interest in which he agreed to sell to the defendant; and defendant owned two oil rigs, an undivided one-half interest in which he agreed to sell to the plaintiff, for which interest plaintiff agreed to pay to the defendant $4,500 in cash, and to assume the payment of one-half of the balance then owing thereon by the defendant, which payments have not yet been made. Those two agreements were parts and parcels of the agreement to enter into the partnership. Two days after the agreement to enter into the partnership was made, the defendant notified plaintiff of his refusal to proceed any further with it,-and also refused to carry out the agreement with plaintiff with respect to the purchase and sale of the four oil drilling rigs. While it was contemplated-that those rigs as well as the leases should become partnership property after title thereto had passed to the partners under the agreement of purchase and sale, yet it is manifest from the petition that no title ever passed in pursuance of that agreement either to the partnership firm or to the parties to the agreement; therefore none of those oil rigs ever in fact became assets of the proposed partnership firm. Since the agreement to enter into the partnership never became effective, no partnership was in fact created which could take over and hold the drilling rigs and leases as was originally contemplated. It is a familiar general rule that a parol contract to convey personal property cannot be specifically enforced, because ordinarily there is an adequate remedy at law. 25 R. O. L. 293. It does not appear that the defendants’ agreement with respect to the sale of the drilling rigs would come within any exception to that general rule. On the contrary, we perceive no reason why plaintiff has not an adequate remedy at law. against the defendant for the defendant’s breaeh of' *932that contract if he has suffered any damages therefrom. It is a further familiar rule that an agreement to enter into a partnership cannot be specifically enforced. Moreover, when the sufficiency of plaintiff’s petition is tested as against a general demurrer, it must be construed as a whole. When so construed, and when every reasonable intendment is looked to, we believe it clearly shows that the relief sought was the recovery of a one-half interest in the oil leases in controversy, together with a one-half interest in the drilling rigs, mentioned above, and one-half the profits alleged to have been earned by the defendant on the leases after the agreement for partnership was entered into; and that relief was sought as an entirety, with no intention to sue for an interest in the drilling rigs separately and apart from the leases. By reason of the facts stated, in order to award plaintiff that relief, it would become necessary, first, to specifically enforce the defendant’s parol contract with respect to the purchase and sale between the parties of the drilling rigs as well as his parol agreement to convey to the proposed partnership firm the oil leases in controversy, and neither of those agreements is subject to specific performance.
Accordingly the motion for rehearing is overruled.