
    James Jones vs. Ann McMichael, Administratrix of R. McMichael.
    
      Partnership — Frauds, Statute of.
    
    
      A. and B. agreed by parol as follows: A. agreed to erect a steam sawmill on the land of B., and to manage the same at his own cost, and B. agreed to deliver at the mill, at his cost, all the timber growing on a certain tract of land belonging to B., and they were to divide the profits betweep them. A. erected the mill, and the parties complied with the contract until B.’s death, and then his administratrix refused further to comply: — Held, that this was a copartnership which was dissolved by the death of B ■ — the whole Oourt holding that if the agreement was to divide the nett profits after the lumber had been sent off and sold, it was clearly a copartnership ; and three Judges to one holding that even if the agreement was to divide the lumber at the mill, still it was a copartnership.
    
      Held, further, that the contract was void under the statute of frauds.
    BEFORE O’NEALL, J., AT ORANGEBURG, SPRING TERM, 1859.
    The report of his Honor, the presiding Judge, is as follows:
    “ In this case it appeared that the plaintiff, being the owner of a steam saw mill in 1853 or 1854, agreed verbally with the intestate that he should erect his mill on the land of the intestate ; that he would furnish the hands for thé mill, and intestate was to cut and haul the timber on his land from Jones’ Branch to the said mill, where it was to be sawed. Each of the parties were to receive half of the profits. The plaintiff put'up his mill, and built a railroad to the creek or river to transport the lumber. The contract on the part of the intestate was complied with until his death in June, 1856. The defendant, finding that sTie could not go on with the contract without loss, declined to do so. She interposed no objection to the plaintiff’s removal of his mill.
    
      “ The defendant moved for a nonsuit on various grounds.
    “ I thought the proof made out a case of partnership by word of mouth, which was dissolved by the death of the defendant’s intestate. I also thought the contract void by the fourth section of the Statute of Frauds.
    
      “ The nonsuit was ordered.”
    The plaintiff appealed, and now moved this Court to set aside the nonsuit:
    1. Because his Honor erred in deciding that the evidence established a copartnership between the plaintiff and Eichard Y. McMiehael, the intestate.
    2. Because his Honor erred in deciding that the contract between the plaintiff and the intestate, being verbal, was void by the fourth section of the Statute of Frauds.
    
      Filis, Bellinger, for appellant, submitted,
    1. That it was not a partnership, but a mere agreement to work on shares. Terrell vs. Adm'r Bicharás, 1 N. & McC. 20; Osborne vs. Brennan, 2 N. & McC. 427 ; Lowry vs. Broolcs, 2 McC. 421; Pierson vs. Steinmyer, 4 Eich. 312 : Simpson vs. Felt,, 1 McC. Ch. 213 ; Murray vs. Stevens, Eich. Eq. Cases 205 ; Holmes vs. U. Ins. Co., 2 Johns. Oases 329; U. Ins. Co. vs. Scott, 1 Johns. E. 106; Post vs. Kimberly, 9 Johns. Eep. 470 ; 3 Kent’s Com. 23; Bowman vs. Bailey, 10 Yerm. 170; Collyer on Partnership, sec. 29 ; Blanchard vs. Goolidge, 22 Pick. 151; Collyer on Partnership, sec. 35; Knowlton vs. Reed, 38 Maine, 246; Bancho vs. Gilley, 38 Maine, 553; Denny vs. Cabot, 6 Met. 82; Dunham vs. Rogers, 1 Penn. 255; Mohawh Go. vs. Niles, 3 Hill (N. Y.) 162 ; Ferguson vs. Alcorn, 1 B. Munroe, 160. Even cc needing it to be a partnership, the action is not for an account of profits, but for the nonperformance of tbe agreement to furnish trees, &c. Collyer, sec. 204-5, and cases cited; Cary on Part. 160.
    2. Not within the Statute of Frauds, as found 2 Stat. 525, sec. 4; See Wood vs. Gee, 3 McO. 421; Bates vs. Moore, 2 Bail. 614; Bird .vs. Muhlinbrinlc, 1 Bich. 201; Garrett vs. Malone, 8 Bich. 335. Agreement for cutting trees or grain not within the statute : Forbes vs. Hamilton, 2 Tyler (Ft.) 356; 20 Wend. 70; 17 Eng. O. L. B. 253 ; Whitmarsh vs.Walker, 1 Met. 313 ; 28 Eng. C. L. B. 10 ; Bice, 447; 10 Pick. 560 ; Olaflin vs. Carpenter, 4 -Met. 580; Hettleton vs. Silces, 8 Met. 34; 12 Con. Bep. 228 ; 10 Texas, 320; Bostick vs. Leach, 3 Day, 476; Austin vs. Sawyer, 9 Cow. 39.
    
      Glover, contra.
    The contract was one of partnership, as set forth by plaintiff’s declaration, and established by his proof.
    For definition of a co-partnership, as between the parties. Collyer on Part. 2; Pierson vs. Steinmeyer, 4 Bich. 315, 316, 317, 318 ; Waugh vs. Carver, 1 Smith, 500.
    1. This action cannot be maintained at law. One partner cannot sue his co-partner at law, in any action in form ex contractu. — 1 Chit. PI. 26; Chit, on Con. 236.
    2. This action cannot be maintained at law for breach of agreement to furnish trees. Collyer on Part., S. S. 113,116, 117, 118, and 546, N. 5. To the point that at law, the "survivor cannot sue representative of deceased co-partner, except in matters pertaining to winding up and settling co-parnership account, under certain circumstances there stated.
    II. This action cannot be sustained in any tribunal. Partnership dissolved by death of B. V. McMichael. The death of one partner dissolves the partnership as to all future transactions. Cary on Part. 163, 285; Crawford vs. Hamilton, 3 Mad. 248 ; Vulliamy vs. Noble, 3 Meriv. 614.
    This contract is void by sec. 4, Statute of Frauds.
    I. Where any contract is for things growing in the land, which are such as would go to the heir, it is within the statute. Where it is for such crops as would go to the executor, it is a sale of chattels, and is not within this section. Evans vs. Roberts, 5 Barn. & Cress. 829; Scorell vs. Boxall, 1 Y. & J., 398; The Bank of Lansingburgh vs. Crary, 1 Barb. 545.
    II. Another distinction is between annual productions caused by the labor.of man, which are not within the statute, and the annual productions of nature, not referable to the industry of man, which are within the statute. Roclwell vs. Phillips, 9 M. & Weis. 505; 4 M. & Weis. 343; Green vs. Armstrong, 1 Denio,554.
    III. Where the contract confers an interest in the growing surface. Emmerson vs. Heelis, 2 Taunt. 38; Orosby vs. Wads-worth, 6 East, 602.
    IY. A contract for growing trees is an interest in the land. Werren vs. Leland, 2 Barb. 613; 1 Barb. 542; Green vs. Armstrong, 1 Denio, 554 ; Putney vs. Day, 6 N. Hamp. 431; 7 N. Hamp. 522 ; Teal vs. Anty, 2 Broderip & Bing. 99.
    Y. Statute of Frauds provides for lands and goods 'as they were esteemed before its enactments. Dunne vs. Ferguson, Hay’s B. 540, Irish, and before statute, timber trees when sold, unless severed, go to the heir. Bacon’s Ab. Ex’ors.and Ad’mrs, 647; Wms. on Ex’ors, 450, 451.
    If contract is not obnoxious to 4th section, it is within 17th section.
    1. 1. No memorandum in writing.
    2. No pledge which means delivery of money.
    3. If this is construed an entire contract, there is not, and cannot be such acceptance as to meet" requisitions of statute. 8 M. & S. 442; 2 Barn. & Cress. 44; 2 Cromp. & Mees. 504; 10 Mete. 132.
    II. This is not a contract for manufacturing articles, or for work and labor, but is the sale of a thing in solido, and within the statute. Cooper vs. Elston, 7 T. B. 14; Garbut vs. Watson, 5 Barn. & Al. 613; Cason vs. Cheely, 6 Georgia, 554; 12 Mete., 356 ; Gardner vs. Joy, 9 Mete. 177 ; 6 Taunt. 11; Smith 
      vs. Surman, 17 E. C. L. R. 253 ; Winship v. Buzzard, 9 Rich. 103.
   The opinió-n of the Court was delivered by

Wakdlaw, J.

The agreement between the plaintiff and tbe defendant’s intestate contemplated the erection.and management of a steam mill on the intestate’s land, at the exclusive cost of the plaintiff — the delivery at the mill of all the timber, which at the making of the agreement was growing on a. certain tract of intestate’s land, at the exclusive cost of the intestate: and after sawing by plaintiff, an equal division between the plaintiff and the intestate. The report says the division was to be of the profits; the declaration says it was to be of “the nett proceeds of the value of the sawed lumber, or the sawed lumber itself at the mill.”

There was between the contracting parties no community of interest in the mill, or in the timber when growing, or after it was felled and before it was delivered: but before division, there was a community of interest in the sawed lumber. One may have made money and the other lost— there was then no mutuality of nett profits: but if the lumber was sent to a distant market for sale, (and at the bar it is admitted that' most of it was sent to Charleston,) there was a mutual participation in the profits and losses attending that which was the common stock. Expenses of rafting, commissions on sales, losses in transportation, fluctuations in the market, of course affected both parties equally. Either, as the common agent, could have contracted as to these particulars, and either could have received from a factor the proceeds of a sale, subject to the duty of accounting. This would have made a plain case of partners inter sese: partners each of whom contributed labor and materials, whose stock was in the nett proceeds or products, and whose profits or losses resulted from the good or ill luck attending the disposition of those proceeds.

If the proceeds were, at the will of either party, to' be divided at the mill, the partnership is less plain: but even then there is high authority for saying that the products or “articles manufactured and to be divided, may well be deemed the profits or losses of their joint undertaking and business.” Story on Part, § 27.

If there was a partnership, it was dissolved by death. The cases which have been cited to show, that upon articles of partnership, one party, waiving his right to specific performance, may sue the other party for damages occasioned by non-performance, fall very far short of showing that after the death of one, an action will lie against his administrator for not continuing. '. It is said to be very hard here that the plaintiff should not reap the advantage which was on both sides expected, to compensate him for the large outlay which he has made. It was for him to have considered the contingencies which might defeat his expectations, before he expended his money. It would, on the other hand, be hard to subject an administratrix to damages for not continuing a business to which the limited authority conferred upon her by the law over the land and slaves of her intestate, is inadequate.

To reconcile to the result of this case reached by the Court, one member of the Court, who has, under the supposition of a division to be made at the mill, some doubts about the partnership, we will glance hastily at the questions-made under the Statute of Frauds.

Under the agreement, the plaintiff was not to acquire any' interest in the growing timber, or even in the logs before they were delivered at the mill. That part of the 4th section of the Statute which relates to interest in land, is then applicable to the case.

There was no sale of timber or logs by the intestate to the plaintiff — only an agreement to contribute labor and materials : tbe 17th section of the Statute is then inapplicable.

The agreement contains no express reference to time: but under it the business was carried on for more than a year, and not half of the timber was sawed or even felled. If it appeared, as we assume it did, from the quantity of timber and the capacity of the mill, that the parties, in their agreement, contemplated the lapse of a longer period than one year before the enterprise could be fully executed, then the agreement was obnoxious to that portion of the 4th section of the Statute which speaks of an agreement “that is not to be performed within the space of one year from the making thereof.”

Under the evidence, which we have assumed, there would have been no such contingency as could have taken the case out of the Statute, like a promise to pay on the death of a certain person, and the like. Nor would the case be saved by complete performance on the side of the plaintiff: — he had performed as to the erection of the mill, but could not have fully performed his part of the agreement until he had sawed the whole of the specified timber.

The whole Court agree that the nonsuit was properly ordered.

The motion is dismissed.

O’Neall, (3-lover, and Munro, JJ., concurred.

Motion dismissed.  