Supreme Court of United States.
*397 Mr. William F. Mattingly and Mr. Enoch Totten for appellant.
*398 Mr. J. Hubley Ashton and Mr. Walter D. Davidge (Mr. Nathaniel Wilson was with them) for appellees.
MR. JUSTICE HARLAN delivered the opinion of the court. After stating the facts in the foregoing language, he continued:
While there is some conflict in the testimony as to the circumstances attending the purchase by C.C. Huntley of Parker's interest in these companies, we are of opinion upon a careful examination of the evidence:
1. That the purchase by C.C. Huntley was pursuant to an understanding between him and Barlow, that the latter should have one-half of the Parker interest in the Northwest Stage Company, and with the purpose, on the part of C.C. Huntley, that S.S. Huntley, should have the other half;
2. That before such purchase, S.S. Huntley was informed by C.C. Huntley of the latter's intention to let him have one-half of that interest;
3. That, at the time of such purchase, there was an unsettled account between C.C. Huntley and S.S. Huntley in respect as well of services rendered by the latter as agent and general manager for the former, as of mail contracts and business in which they were jointly interested, other than those relating to routes not occupied by the Northwest Stage Company or other companies with which Barlow was connected;
4. That C.C. Huntley, in execution of his avowed purposes with reference to S.S. Huntley, verbally agreed with the latter, while they were together in the west in the summer or fall of 1874, after the purchase from Parker, that he should have one-half of the original Parker interest in the two companies that is, the remaining one-sixth interest in the Northwest Stage Company, and one-eighth interest in the other company at the price which C.C. Huntley had paid for them; the amount, if any, due to S.S. Huntley, on account of the before-mentioned services and contracts, to be applied in payment as far as it would go for the interests so transferred to him;
5. That the ownership of those interests by S.S. Huntley was not to be deferred until a settlement of accounts between him and C. C Huntley was had, but was to take effect as of *399 July 1, 1874, when the new contract term of those companies commenced;
6. That the writing of December 22, 1874, was executed because of the then contemplated absence of C.C. Huntley in Europe for the benefit of his health, and to show the interest which S.S. Huntley had previously acquired, and then, under the agreement with C.C. Huntley, actually had in the property and business of the Northwest Stage Company;
7. That, thereafter, all parties concerned in the affairs of that company, including C.C. Huntley, recognized and treated S.S. Huntley as the owner of one-sixth interest in its property and assets, subject, however, so far as C.C. Huntley was concerned, to the liability of S.S. Huntley to reimburse him for the amount which that interest had cost.
In behalf of the appellee Huntley, it is contended, that the verbal agreement, upon which appellant relies as the foundation for his claim, is void under § 17 of the statute of 29 Car. II. ch. 3, which is in force in the District of Columbia, and which provides that "No contract for the sale of any goods, wares, and merchandise for the price of ten pounds sterling, or upward, shall be allowed to be good, except the buyer shall accept part of the goods sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum, in writing, of said bargain be made and signed by the parties, to be charged by such contract, or their agents, thereunto lawfully authorized." Kelty's Eng. Statutes, 242, Thompson's Digest, 221.
The argument in support of this proposition is: That the Northwest Stage Company was a species of partnership with joint-stock divided into transferable shares, which could be disposed of by the owner without the consent of his partners; that such shares were substantially like stock in corporations or regular joint-stock companies; and that the alleged verbal sale of an interest in that company was void under the foregoing statute, because, as is claimed, the words "goods, wares, and merchandise," as therein used, properly embrace not merely palpable personal property, having an intrinsic value, but also stocks in chartered corporations, shares or interests in joint-stock *400 companies, or private partnerships having the incidents of such companies, notes, checks, bonds, and other evidences of value.
Without determining whether this statute governs the rights of the parties, or whether this interpretation of its provisions is sustained by the weight of authority, or whether the writing of December 22, 1874, is not itself a sufficient memorandum in writing of the sale in question, it is enough to say that the contract between C.C. Huntley and S.S. Huntley was so far executed that the rights and obligations of the parties cannot be affected by the statute. To the extent that it was possible or necessary in respect of property of this character, the vendee was placed in possession of that which he purchased. This is shown by the evidence of several witnesses, and is established by the paper of December 22, 1874, which declares that S.S. and C.C. Huntley are the owners of one-third of the stock, property, and effects of the Northwest Stage Company, and, as such and to that extent, are to share in all the mail routes then lately operated by that company, and to share, in the future, in the profits, losses, and expenses appertaining thereto. There is some evidence tending to show that when this paper was executed C.C. Huntley was in poor health, but it falls short of proving that he was incapable, in law, of becoming a party to such an instrument. Nor does his answer assert any such incapacity as a ground of defence. Besides, that writing is in accordance with the understanding reached between him and S.S. Huntley prior to its execution.
The decrees, in general and in special term, are, in our judgment, erroneous; the former, because it denied all relief to the plaintiff; and the latter because it proceeded upon the ground that the evidence showed that S.S. Huntley had fully paid for the interest sold and transferred to him by C.C. Huntley. The case should go to an auditor, to ascertain the amount, if any, fairly and justly due S.S. Huntley from C.C. Huntley at the time of his purchase from C.C. Huntley such amount to be applied in payment of S.S. Huntley's indebtedness to C.C. Huntley, on account of the purchase from the latter of one-half of the Parker interest in the Northwest Stage Company. *401 And if C.C. Huntley was not indebted to S.S. Huntley at that date, then the former will be entitled to be reimbursed out of the funds in the hands of Barlow, for all that he paid for the one-sixth part sold to S.S. Huntley, with interest thereon from the time of the purchase from Parker; the balance, if any, to go to S.S. Huntley. Such further decree should be rendered after the report of the auditor as the facts thus disclosed will justify or require.
The decree below is reversed, with direction for such proceedings as will be consistent with this opinion.
