to be treated as part of the partnership property, and, as a consequence, personal estate. It is also well settled "that parol testimony is admissible to prove a resulting trust in relation to real estate, and that land purchased in the name of one partner, for the use and benefit of the firm, raises a resulting trust which will be enforced." Story, Eq. Jur. §§ 1206, 1207; Scruggs v. Russell, 1 McCahon, 39.

These principles are applicable to this case and decisive against the defendants. When the plaintiff was taken into the partnership of W. E. Davis & Co., on March 12, 1875, as the firm was then in existence, and in the possession of real estate purchased for partnership purposes, and then appropriated to those purposes, such real estate was partnership property, and the plaintiff, by acquiring an interest in the partnership by verbal contract, and thereafter having acted under the contract as one of the partners, with the consent of all the members, is not to be deprived of his interest in the partnership, either as to the personal property or real estate, on account of the statute of frauds. The cases establish that a partnership in any branch of trade or business may be shown by parol as an existing fact, and that whatever real estate is held for the purpose of such business is regarded as an incident thereto, and the law will imply a trust in favor of the partnership, however the lands be held in law. For an illustration: If a mercantile firm carrying on the business of buying and selling goods, and as an incident to the business owning and having in possession the building in which the business is transacted, takes into the partnership another person, who purchases an interest in the partnership, and, as a partner, is let in possession of the partnership property, and all the parties act on the agreement, such person is not to be deprived of his right in the real estate held by the firm at the time he became a member thereof because his agreement with the other partners was not in writing. If the partnership be proved, that will suffice to establish a partnership trust in the land intended and treated by all the partners as partnership property, however the land be held; and this will not be incompatible with the conditions of the statute of frauds. Scruggs v Russell, supra; 1 Lindl. Partn. 87-90; Bird v. Morrison, 12 Wis. 138; Borden v. Whaling Co., 10 Cush. (Mass.) 458; Browne, Frauds, §§ 259-263.

We think it is immaterial whether the real estate in this case was bought with partnership funds, for partnership purposes, after the formation of the partnership, or whether a part of the real estate was put into the firm as partnership property at the formation of the new firm on March 12, 1875, if the parties have acted on the agreement and become partners. In such case, the statute of frauds ceases to be applicable. Smith v. Tarlton, 2 Barb. Ch. (N. Y.) 336; Bissell v. Harrington, 18 Hun (N. Y.) 81.

The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.

EARL, C., in CHESTER et al. v. DICKERSON et al.' (Commission of Appeals of New York, 1873. 54 N. Y. 1, 13 Am. Rep. 550.)

It cannot be questioned that two or more persons may become partners in buying and selling land. There 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 Me. 418; Sage v. Sherman, 2 N. Y. 417; Mead v. Shepard, 54 Barb. 474; Pendleton v. Wambersie, 4 Cranch (U. S.) 73, 2 L. Ed. 554; Thompson v. Bowman, 6 Wall. (U. S.) 316, 18 L. Ed. 736; Hoxie v. Carr, 1 Sumn. (U. S.) 173, Fed. Cas. No. 6,802, 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 it is not essential to a legal partnership that it be confined to a commercial business. It may exist between attorneys, conveyancers, mechanics, owners of a line of stagecoaches, artisans, or farmers, as well as between merchants and bankers." 3 Kent, 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 Sumn. (U. S.) 435, Fed. Cas. No. 13,019. 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 all the partnership property, whether it be real or personal, and in such cases will not allow the 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 doc

trine 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 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.1

COLEMAN v. EYRE.

(Court of Appeals of New York, 1871. 45 N. Y. 38.)

RAPALLO, J. The plaintiff was interested to the extent of onefourth in the profits or losses of a shipment of coffee undertaken by him jointly with other parties. After the adventure had been begun, and before the coffee had reached its port of destination, it was mutually

1 "A contract forming a partnership to be continued beyond one year is within the section of the statute of frauds which provides that every agreement which by its terms is not to be performed in one year from the making thereof is void unless it is in writing, and a partnership so formed is a partnership at will. Morris v. Peckham, 51 Conn. 128; Williams v. Jones,

agreed between the plaintiff and the defendant that the latter should have one-half interest in the plaintiff's one-fourth interest in the adventure. The speculation resulted in a loss, and this action was brought to recover one-half of the plaintiff's proportion of such loss. It is now claimed on the part of the defendant that no valid contract was made between him and the plaintiff; that inasmuch as the plaintiff had embarked in the speculation before and without reference to any arrangement with the defendant, and the defendant had not done or contributed anything to aid in the joint enterprise, there was no partnership, and no consideration for the undertaking of the plaintiff to give him one-half of the profits; that therefore the defendant could not have enforced payment of half the profits if the adventure had been successful, and consequently no agreement on his part to contribute to the loss can be implied.

This argument assumes that the agreement was simply that the defendant should have one-half of the profits which the plaintiff might make out of the adventure in case it should prove successful. But such was not the agreement proved. The agreement was that the defendant should share with the plaintiff in the adventure, and it seems to have been clearly understood that he should participate in the result, whether it should prove a profit or a loss. That it might, result in a loss was contemplated by the parties. There is evidence in the case that the possibility of that event was the subject of conversation between them at the time of making the contract; that the hope was then expressed that the plaintiff would not be compelled to call upon the defendant to contribute to a loss; and that afterward, when they did call upon him to contribute, he did not dispute his liability, but sought to reduce the amount by claiming a portion of the plaintiff's commissions.

The evidence fully justified a finding that, in consideration of the agreement by the plaintiff to account to the defendant for half the profits in case of success, the defendant undertook to bear half the loss in the contrary event; and the intendment is that the referee did so find. Indeed, such is a proper construction of the actual finding. It is a clear case of mutual promises; and the obligation of each party was a good consideration for that of the other. Briggs v. Tillotson, 8 Johns. 304.

The agreement was not within the statute of frauds. It was not an agreement for the sale of any personal property or chose in action, but an executory agreement, whereby one party undertook to bear one part of a possible loss in consideration of a share of an expected profit.

5 B. & C. 108; Jones v. McMichael, 12 Rich. Law (S. C.) 176; Essex v. Essex, 20 Beav. 442; Burden v. Barkus, 3 Giff. 412; 4 De G. F. & J. 42, 47, 50; Reed's Stat. Fr. § 191; Lind. on Part. (25th Eng. Ed.) 80, 81." Per Follett, C. J., in Wahl et al. v. Barnum et al., 116 N. Y. 87, 97, 22 N. E. 280, 5 L. R. A. 623 (1889). But see Shropshire v. Adams (Tex. Civ. App.) 89 S. W. 448 (1905), contra.

The judgment of reversal and order granting a new trial should be reversed, and the judgment for the plaintiff entered on the report of the referee should be affirmed, with costs. Order of General Term reversed.

SECTION 4.-FOR WHAT PURPOSES.

CENTRAL TRUST & SAFE DEPOSIT CO. et al. v. RESPASS. (Court of Appeals of Kentucky, 1902. 112 Ky. 606, 66 S. W. 421, 56 L. R. A. 479, 99 Am. St. Rep. 317.)

Action by Jerome B. Respass against the executors of Solomon L. Sharp for a settlement of partnership accounts. Judgment granting relief sought, and defendants appeal.

DU RELLE, J. Jerome B. Respass and Solomon L. Sharp appear to have formed a copartnership, extending over several years, in the business of managing a racing stable, and, in connection with that business, were engaged in "bookmaking," or making wagers upon race horses. They seem, also, to have had an interest in a pool room at Newport. For the book business a separate account was kept by a cashier employed for the purpose. They had no regular time for making settlements with each other, but at various times, when requested, the cashier made out statements of the booking business of the firm. It appears from the testimony of Bernard, the cashier, that Sharp in November, 1897, handed him $4,724, and told him to deposit it to his (Sharp's) credit in the Merchants' National Bank of Cincinnati, Ohio, which was done. Sharp appears to have stated at the time that one-half of this fund belonged to Respass. It appears further that this was the "bank roll" of the bookmaking concern, in which each partner had an equal interest. At the same time he remarked that Respass had paid out $1,500 for the firm, and that he would see him in a few days and settle with him. Sharp died suddenly, before any such settlement was made. The money in the bank roll was on deposit to Sharp's credit. The racing business of the firm seems to have been almost entirely in the hands of Respass, who attended to the horses, trained them, entered them in races, and at times wagered on them for the benefit of the firm, which divided the profits or shared the losses, as the case might be. Respass brought suit against Sharp's executors for a settlement of the partnership accounts. The horses in the racing stable were sold under order of court, and various claims against the fund in court were made by Respass for expenses incurred in keeping, shoeing, clipping, training, and caring for the various