Davenport v. Buchanan

Citations

• 6 S.D. 376
• 61 N.W. 47
• 1894 S.D. LEXIS 158

Syllabus

<p>, 1. A parol contract entered into between B. and D., by which they mutually agree to jointly purchase certain real property, and to contribute and pay an equal amount therefor, and to share equally in the profit or loss arising from a resale, is not an agreement for the sale of real property contemplated by section 3544 of the Compiled Laws, which requires the same, or some memorandum or note thereof, to be in writing, and subscribed by the party to be charged; but the same is held to be an agreement in the nature of a special partnership, for the purpose of dealing in a particular piece of real estate, and not within the statute of frauds.</p> <p>2. The relation thus established, being of a fiduciary character, imposes upon each the duty of fair and open dealing with the other, and each has a right to rely explicitly upon the statements of the other concerning all matters pertaining to their business relations; and, when one knowingly procures money from the other by wrongfully representing that the purchase price of the land is greater than was in fact required, the other is entitled to recover therefor, although, upon inquiry, he might have learned that such representations were false.</p> <p>3. In the absence of an additional or amended abstract, it is presumed that all the evidence regarded essential to a determination of the questions presented is contained in the bill of exceptions, or statement of the case formulated by and included in appellant’s abstract.</p> <p>(Syllabus by the Court.</p>