statute. Truman v. Loder, 11 Ad. and El. 589; 2 Parsons on Con. 291. It is true that authority to convey must be in writing and by deed; for land can only be conveyed by deed, and the power must be of as high dignity as the act to be performed under it. It was not necessary to the obligation of the contract that it should have been signed by the vendee. His acceptance and possession of the contract and payment of money under it, are unequivocal evidences of his concurrence, and constitute him a party as fully and irrevocably as his signing the contract could. 2 Parsons on Con. 290; McCrea v. Purmort, 16 Wend. 160; Shirly v. Shirly, 7 Blackf. 452.

We cannot question the sufficiency of the tender in equity, to entitle the complainant to specific performance. Webster et al. v. French et al., 11 Ill. 278. Nor do we find any substantial departure in the contract from the authority proved. While we hold that the authority to the agent who, for his principal contracts for the sale of land, need not be in writing, yet we should feel bound to refuse a specific perfor mance of a contract made with an agent upon parol authority, without full and satisfactory proof of the authority, or where it should seem at all doubtful whether the authority was not assumed and the transaction fraudulent.

Decree [dismissing the bill] reversed and cause remanded.

Decree reversed.1

FRANK E. BATES, APPELLANT, v. E. S. BABCOCK ET AL., RESPONDENTS.

CALIFORNIA SUPREME COURT, AUGUST 4, 1892.

HARRISON, J.

[Reported in 95 California, 479.]

The plaintiff brought this action against the defendants for an accounting upon a partnership agreement between them for the purchase and disposition of certain real estate in San Diego. At the trial of the action, the plaintiff offered himself as a witness, and under the objection of the defendants that it was incompetent and immaterial, gave testimony tending to show that an oral agreement had been made between himself and the defendant Babcock, acting on

1 Heard v. Pilley, 4 Ch. App. 548; Rutenberg v. Main, 47 Cal. 213; Tibbetts v. West and South Ry. Co., 153 Ill. 147; Rottman v. Wasson, 5 Kan. 552; Rose v. Hay. den, 35 Kan. 106; Talbot v. Bowen, 1 A. K. Marsh. 436; Brown v. Eaton, 21 Minn. 409 (changed by statute, Coursolle v. Weyerhauser, 69 Minn. 328, 332); Curtis ". Blair, 26 Miss. 309; Lobdell v. Mason, 71 Miss. 937; Riley v. Minor, 29 Mo. 439; Jackson v. Higgins, 70 N. H. 637; Worrall v. Munn, 5 N. Y. 229; Newton v. Bronson, 13 N. Y. 587; Blass v. Terry, 156 N. Y. 122, 135; Abbott v. Hunt, 129 N. C. 403; Dodge v. Hopkins, 14 Wis. 630, Tufts v. Brace, 103 Wis. 341, 344; Brown e. Griswold, 109 Wis. 275, 279, acc.

In some states, however, statutes expressly require the agent's authority to be in writing. See Mechem on Agency, $ 89.

2 A portion of the opinion is omitted.

behalf of the defendant the Coronado Beach Company, of which he was president, by which they were to pay off the encumbrances upon certain real estate, sell and dispose of the same, and share the profits and loss in dealing therein; that for that purpose he gave to the defendants fifteen thousand dollars with which to pay certain claims and encumbrances thereon, and that the same was so applied; and that at the request of the defendant Babcock, a conveyance of the property was executed to one Hubbell, who was the secretary of the defendant corporation. After this testimony had been given, the defendants moved to strike out all portions thereof "relating to an agreement for an alleged partnership between the plaintiff and the defendants, or either of them, in the land described in the complaint, or any partnership between the parties, upon the ground that the same is incompetent and immaterial; that a partnership of the character alleged in the complaint must be proved by an instrument in writing, signed by them, or one of them." The court granted the motion, saying that "the contract, as alleged in the complaint, and supported by the evidence, is one clearly for an interest in lands, and as such is void under the Statute of Frauds." Upon the submission of the cause, the court, in its decision, found that there had been no agreement for a partnership in the land, and rendered judgment in favor of the defendants. From this judgment, and an order denying his motion for a new trial, the plaintiff has appealed.

A partnership may be formed for the purpose of dealing in lands, as well as for dealing in personal estate, or for engaging in professional, or commercial, or manufacturing occupations. Like any other contract of partnership, it is an agreement to share in the profit and loss of certain business transactions. Such a partnership may be formed for the purpose of buying and selling land generally, or it may be limited to a speculation upon a single venture. Dudley v. Littlefield, 21 Me. 422; Chester v. Dickerson, 54 N. Y. 1, 13 Am. Rep. 550; Williams v. Gillies, 75 N. Y. 201.

Whether such a partnership can be formed, except by an agreement in writing, has been the subject of conflicting decisions. There is a dictum in Gray v. Palmer, 9 Cal. 639, to the effect that it must be in writing, for which Story on Partnership, section 83, is cited as authority; and in Smith v. Burnham, 3 Sum. 458, it was so held by that distinguished jurist. The great weight of modern authority, however, is in support of the rule that such a partnership may be formed in the same mode as any other, and that its existence may be established by the same character of evidence. It was so stated in Coward v. Clanton, 79 Cal. 23, where it was held that an agreement for the purchase of a tract of land, and its subdivision and sale in parcels, and for a division of the profits resulting therefrom, in which one party was to furnish

1 Rowland v. Boozer, 10 Ala. 690, 695; Pecot v. Armelian, 21 La. Ann. 667; Bird v. Morrison, 12 Wis. 138; McMillen v. Pratt, 89 Wis. 612; Smith v. Putnam, 107 Wis. 155, 162, acc. Compare Watters v. McGuigan, 72 Wis. 155.

VOL. I.-35

the capital and take a conveyance of the land, and the other to furnish the skill and labor in making the sales, could not be avoided after the transaction had been completed, merely because it was not in writing. More than a hundred years ago it was held by Lord Thurlow, in Elliot v. Brown, reported in 3 Swanst. 489, 1 Vern. 217, that the right of survivorship in a joint demise of a farm was destroyed by reason of the tenants having farmed the land upon joint account, and thus by their acts made it partnership assets. The question was very fully considered by Vice-Chancellor Wigram in Dale v. Hamilton, 5 Hare, 369, wherein previous decisions involving similar principles were reviewed, and it was held that under the principles of those decisions the existence of such a partnership could be shown by general evidence, without the necessity of a written agreement. In that case a parol agreement had been entered into, under which a tract of land was to be purchased in the name of one McAdam, and laid out in lots, and resold, he furnishing the capital and the plaintiff the skill and labor necessary therefor, and the profits resulting from the venture were to be divided between them. The purchase was accordingly effected in the name of McAdam, but the defendants who had succeeded to McAdam, with notice of the agreement, afterwards refused to carry it out. Thereupon the plaintiff filed his bill for an accounting and a sale of the land under the direction of the court, with a division of the proceeds in accordance with the terms of the agreement. The defendants resisted the suit, upon the ground that the agreement was within the Statute of Frauds, and could be established only by an instrument in writing; but the vice-chancellor overruled their objections and upheld the bill. In his opinion (p. 383) he uses the following illustration in support of his conclusion, which is peculiarly appropriate to the present case: "In order to try this question in the most simple manner, I will suppose the case to be the converse of what it is. I will suppose that the land purchased, instead of rising, had fallen in value, that a loss had been sustained, and that Hamilton and McAdam were the plaintiffs seeking to compel Dale to contribute his proportion of the loss. If in this case the authorities would have enabled Hamiliton and McAdam, by proving the partnership with Dale, and that the land was part of the partnership stock and effects, to have compelled contribution from Dale, the same authorities will, upon like proof, support the present suit upon the principle that of mutuality in remedies which enables a vendor to recover the purchase-money in this court, though the remedy at law may be equally adequate and more appropriate," and cites several authorities. to the effect that in such a case the defendant would have been liable for contribution. The rule laid down in Dale v. Hamilton, 5 Hare, 369, has since been generally followed, and although there are some decisions to the contrary, may now be said to be the prevailing rule upon that subject.1

1 Re De Nicols, [1900] 2 Ch. 410; McElroy v. Swope, 47 Fed. Rep. 386; Von Trotha v. Bamberger, 15 Col. 1; Morrill v. Colehour, 82 Ill. 618; Holmes v. McCray,

Irrespective of any decision, however, an agreement of this character cannot be said to contravene the provisions of the Statute of Frauds. It does not contemplate any transfer of land from one party to the other, or the creation of any interest or estate in lands. In one sense, the parties to such an agreement may be said to have an interest in the lands that are to be purchased under the agreement, that sense

in which the beneficiary, under a trust for the sale of real estate, and payment to him of the proceeds of the sale, has an interest in the land; but it is only a pecuniary interest resulting from the sale and a right to have the land sold, rather than an interest in the land itself. The Statute of Frauds does not prevent parol proof for the purpose of showing an interest in lands, but declares that an agreement by which an estate or interest in lands is to be created must be in writing. No interest or estate in the land is created by such an agreement, but by the subsequent acts of the parties under the agreement rights are acquired in reference to the land that may be purchased in pursuance of the agreement, which a court of equity will protect against any attempt to make the Statute of Frauds an instrument of fraud. A bill for the Conveyance of the lands could not be maintained under such an agreement, but by reason of the acts of the parties thereunder an equity would be raised in their behalf which would be superior to the legal title held by him to whom the land was conveyed, and would control that title in subordination to this superior equity.

It is a familiar rule in equity, that lands acquired by a partnership for partnership uses are partnership assets, and are treated in equity as personalty, whether the partnership was formed by oral or written agreement. The same principle should apply when the object of the partnership is to deal in lands, and the assets of the partnership with which the lands are to be purchased are made up of the skill and money which are respectively contributed by the partners as its capital. Upon proof of the existence of such a partnership, the rights and obligations of the respective partners should be determined upon the same principles and with the same results as in other partnerships.

The settlement of partnership accounts, and the conversion into money of the assets of the partnership, whether real or personal, and their division among the partners, has always been one of the functions of a court of equity, and that court never stops to inquire into the source of the title of such assets, or in whose name they are held. The question 51 Ind. 358; Lewis v. Harrison, 81 Ind. 278, 286; Richards v. Grinnell, 63 Ia. 44; Dudley v. Littlefield, 21 Me. 418, 423; Trowbridge v. Wetherbee, 11 Allen, 361; Wetherbee v. Potter, 99 Mass. 354; Carr v. Leavitt, 54 Mich. 540; Davis v. Gerber, 69 Mich. 246; Petrie v. Torrent, 88 Mich. 43; Snyder v. Wolford, 33 Minn. 175; Newell . Cochran, 41 Minn. 374; Chester v. Dickerson, 54 N. Y. 1; Babcock v. Read, 99 N. Y. 209; King v. Barnes, 109 N. Y. 267, 285; Flower v. Barnekoff, 20 Oreg. 132; Meason v. Kaine, 63 Pa. 339; Benjamin v. Zell, 100 Pa. 33; Everhart's App., 106 Pa. 349; Howell v. Kelly, 149 Pa. 473; Bruce v. Hastings, 41 Vt. 380, acc. Similarly a contract for the sale of a partnership interest is not within the statute though the partners own land. Vincent v. Vieths, 60 Mo. App. 9. Compare Watson v. Spratley, 10 Ex. 222.

has frequently arisen in actions for the division of the proceeds after a sale under such an agreement, and it has been invariably held that the Statute of Frauds is no defence thereto. Bruce v. Hastings, 41 Vt. 380, 98 Am. Dec. 592; Benjamin v. Zell, 100 Pa. 33; Trowbridge v. Wetherbee, 11 Allen, 361; Babcock v. Read, 99 N. Y. 609; Coward v. Clanton, 79 Cal. 23; Reed on Statute of Frauds, sec. 727. See also Byers v. Locke, 93 Cal. 493. Under such an agreement, it is invariably held that an action for the division of the profits can be maintained after they have been received, whereas, if the agreement was invalid at the outset, it could not form the basis of such an action. If, however, the agreement was valid at its inception, it is not rendered invalid by the subsequent act of one of the parties, and although it cannot be changed into a different agreement, such as an agreement for the conveyance of the land, yet either party has the right to its enforcement for the purpose of carrying out its original purpose, the division of the profits resulting from the speculation. The same principles are applicable in an action to subject land which has become a portion of the assets of such a partnership to a sale under the directions of a court of equity, with a distribution of the proceeds thereof according to the rights of the individual partners. This was the case presented and maintained in Dale v. Hamilton, 5 Hare, 369. The same procedure was upheld in Richards v. Grinnell, 63 Iowa, 44, 50 Am. Rep. 727; Bunnell v. Taintor, 4 Conn. 568; Hunter v. Whitehead, 42 Mo. 524; Bissell v. Harrington, 18 Hun, 81; Holmes v. McCray, 51 Ind. 358, 19 Am. Rep. 735; Coward v. Clanton, 79 Cal. 23. After the agreement for the purchase and sale has been executed by making the conveyance in accordance with such agreement, it cannot be objected that such conveyance could not have been compelled on account of the Statute of Frauds. Pico v. Cuyas, 47 Cal. 174. The Statute of Frauds has no application to an executed agreement.

That the agreement between the parties, which is averred in the complaint, and the evidence given in support thereof, did not contemplate any transfer of the land, or of any interest therein, to the defendants, or either of them, but had for its object only a division of the profits and loss that would remain after its sale, is shown by a consideration of the averments of the complaint hereinbefore presented, and also by the direction of Babcock to the plaintiff while negotiating the agreement to "sell it off as soon as you can, pay up the debts, and divide the profits." It was not necessary for the plaintiff, in support of these averments, to produce written evidence of the agreement, but the agreement could have been established by his oral testimony; and the court erred in striking out the testimony that he gave in support of the agreement. The first question to be determined by the court was, whether there was a partnership, and that fact could be shown by general evidence. In Forster v. Hale, 5 Ves. 309, where the right to an interest in the leasehold of a colliery, claimed by virtue of a partnership with one of the lessees, was involved, and it was objected that by