The opinion of the Court, Teníney J. taking no part in the decision, having once been of counsel in the case, was drawn up by
Whitman C. J.This is an action for money had and received, commenced by the plaintiff to recover of the defendant a sum of money, which he had paid the defendant on a contract for the purchase of a tract of timber land. The claim is grounded upon a supposed fraud, alleged to have been prac-tised by one Dolbier, with whom the defendant is alleged to have been in partnership. To maintain this action the contract must be deemed to have been rescinded. A period of nearly five years had elapsed, after the alleged fraud, before this action was commenced ; and it does not appear that any notice had previously been given of an intention to rescind it. If a party would rescind a contract, on the ground of fraud, the rule is, that it should be done within a reasonable time thereafter. What would be a reasonable time is a mixed question of law and fact. When the facts are ascertained, it becomes a question of law. Those facts, in a case like the present, must be somewhat difficult to ascertain, and of course must be referred to a jury, under the instruction of the Court. No evidence to this point appears to have been introduced. Of course no foundation was laid to authorize the plaintiff to proceed on the ground of fraud, in an action for money had and received.
*38But the proof, that Dolbier wets a partner of the defendant, is deficient. He had taken a bond of the defendant to convey to him, on certain terms and conditions, the tract of land in question. It does not appear that Dolbier was under any obligation to make sale of the land to any one else; or that he was in any-wise eriiployed by the defendant to make sale of it. As the course of dealing, at the time of giving the bond, may have been, it may not be improbable, that Dolbier had contracted for the land in expectation of a profit to be made by a resale of it to some One else. And this seems to have been apprehended on the part of the defendant, inasmuch as he appears to have taken a stipulation from Dolbier, that, in case he should realize, in such a sale, beyond a certain amount of profits, that he should pay to the defendant the one half part of any such excess. This cannot be regarded in any sense of the term, as constituting a partnership between them. In the first place, Dolbier was under no obligation to make sale of the land. Secondly, if he did sell, he might or might not sell at a price above the one named. . Dolbier was not under the control of the defendant; and was entrusted with no agency for him in reference to a sale. If Dolbier had sold for less than the amount of profits received, he surely could not be considered as having the semblance of an agency for the defendant. He would have acted only for himself; and the defendant would, not have been aggrieved. How does it make any difference, that, in a certain contingency, Dolbier might have been compelled to pay an additional price for his purchase ? There are other cases in which one party may become entitled to participate in profits without constituting him a partner. The familiar instance of letting a vessel for a share of the profits is one. And the cases of whaling voyages, in which the master and crew are to receive each a certain share or proportion of the proceeds of the oil. Baxter & al. v. Rodman, 3 Pick. 435. Thompson v. Snow, 4 Greenl. 264. In the case at bar the profits to be divided were contingent; and whether there should be any or not, was dependent upon the pleasure of one party independent of the control of the other; *39or of any stipulation with him, that exertions should be made to secure any. How can it be considered, then, that Dolbier was in any-wise the agent of the defendant, so that the latter could be implicated by the fraud of the former ?
Judgment on the nonsuit.