Cuyler Garrett, Jr., Respondent, v. Frank E. Scheffer, Appellant

Cuyler Garrett, Jr., Respondent, v. Frank E. Scheffer, Appellant. (Argued December 21, 1871; decided January 16, 1872.) Action for accounting between partners. Defendant and one McW. had formerly been in partnership. A portion of the partnership assets consisted of certain real estate. This partnership was dissolved, defendant purchasing McW.’s interest. Plaintiff and defendant then formed a partnership under a parol agreement that plaintiff was to take the same interest McW. had, paying defendant therefor what he paid McW. The latter conveyed the real estate to defendant. The referee in this action charged defendant with one-half the value of the real estate. Defendant alleged error, that plaintiff never acquired any interest therein, the agreement being by parol. Held, that as between the partners in closing their accounts the real estate may be regarded as equitable assets; at least that the court would decree a specific performance, as there was sufficient part performance by payment and entry under the partnership to take the case out of the statute of frauds. N. Morey for appellant. W. B. Donihee for respondent; [MAJORITY — Peckham, J.,] Peckham, J., reads opinion for affirmance. All concur. Judgment affirmed.