Dunphy v. Ryan

The defendant admitted in his answer the execution and delivery of the note, and that it had not been paid, and, by way of cross-action and counter-claim, alleged that in February, 1879, one Rumsey and one Embrey were the owners of certain placer mining ground, with the appurtenances particularly described, situate in Grizzly gulch, Minnesota mining district, in Lewis gulach, Minnesota mining district, in Lewis and Clarke county, Montana, and that at the time mentioned, the defendant being in negotiation for the purchase thereof, entered into a contract with the plaintiff, which is thus stated in the defendant's answer: 'The said defendant was to effect the purchase of the two-thirds of the above-described property upon the best terms possible, exercising and using his best judgment for the joint use and benefit of said plaintiff and defendant; that the title thereto, and all deeds of conveyances for the said interest in and to said premises and property, were to be taken in the name of the defendant herein, and that the plaintiff herein was not to be known in the transfers and purchase until such time as the purchase was completed and all of the conveyances executed, and, when so completed, and a good and sufficient title acquired to said property by defendant, the defendant was to make and deliver to the said plaintiff a good and sufficient deed of conveyance for the undivided one-third thereof; and that, upon the execution and delivery of such deed, the said plaintiff promised and agreed to pay to this defendant the one-third of all moneys paid by him as the consideration for such conveyance and transfer, and the one-half of all expenses incurred and paid in and about obtaining the title to the said property as aforesaid.' The answer further averred, in substance, that on July 26, 1879, the defendant had acquired a complete and perfect title to the entire interest and estate in said property by conveyances from Rumsey and Embrey; that the consideration for said conveyances was $5,200, and the expenses incident to acquiring the title were $2,200, and that on the day last mentioned the plaintiff was indebted to the defendant, under said contract, on account of the said purchase and expenses, in the sum of $1,935.51; and that on that day he tendered to the plaintiff a good and sufficient deed for the one undivided third of said property, and demanded of him the payment of the last-mentioned sum of money, and the plaintiff refused to receive the deed, or pay the money demanded of him, and denied the existence of the agreement above set forth. The defendant therefore prayed judgment against the plaintiff for the sum of money so demanded, with interest from July 26, 1879. The plaintiff filed a replication, in which he denied that he ever made the contract set out in the answer.

Upon the trial of the cause, as appeared by the bill of exceptions, the defendant being upon the stand as a witness in his own behalf, and having stated that he did, in February, 1879, enter into a verbal contract with the plaintiff for the purchase of the mining ground described in the answer, and that there was no written agreement, was asked to state what the agreement was. 'The plaintiff objected to the witness answering said question, for the reason that the agreement, not being in writing,' was 'void by the statute of frauds. The court sustained the objection, and refused to permit the said witness to answer the question.' 'The defendant then proposed to prove by said witness the truth of the matters alleged and set up in his answer, and read the same to the court. The court refused to permit the defendant to prove said matters, on the ground that the said matters rested in parol and were not in writing.' The defendant excepted to these rulings. There being no further evidence, the jury returned a verdict for the plaintiff for $1,733, the amount due on the note sued on, for which sum the court rendered judgment against the defendant. Upon appeal by the defendant to the supreme court of the territory this judgment was affirmed. By the present writ of error the defendant seeks a reversal of the judgment of affirmance.

M. F. Morris, for plaintiff in error.

[Argument of Counsel from pages 494-495 intentionally omitted]

E. W. Toole and ''Jos. K. Toole'', for defendant in error.

WOODS, J.