Whether a partnership can be formed by oral contract for the purpose of dealing in realty and for sharing the profits and losses out. of such dealing is a question on which there is great diversity of judicial opinion. The courts do not agree either on the general question of the application of the statute of frauds or upon the. proper classification of contracts of this sort with petration of a fraud but was intended to prevent frauds." reference to the application of the statute. The cases upon this subject may, however, be grouped into classes in such a way that the general weight of authority in each class can be indicated.

Turner v. Johnson, 95 Mo. 431, 447; 6 Am. St. Rep. 62; 7 S. W. 570.

10 See Sec. 646. Griffen v. Coffey, 9 B. Mon. (Ky.) 452; 50 Am. Dec. 519.

11 Junkins v. Lovelace, 72 Ala. 303. (The contract in this case seems to have been made after the sale. The court said that the contract was not proved, even by the oral evidence.) Emmel v. Hayes, 102 Mo. 186; 22 Am. St. Rep. 769;

11 L. R. A. 323; 14 S. W. 209.

12Turpie v. Lowe, 158 Ind. 314; 92 Am. St. Rep. 310; 62 N. E. 484; Sheridan v. Nation, 159 Mo. 27; 59 S. W. 972.

13Littell v. Jones, 56 Ark. 139; 19 S. W. 497 (citing, Lucas v. Nichols, 66 111. 41; Whiting v. Butler, 29 Mich. 122).

14 Pierce v. Clarke, 71 Minn. 114; 73 N. W. 522.

15Byers v. Locke, 93 Cal. 493; 27 Am. St. Rep. 212; 29 Pac. 119.

(1) A contract which does not provide for vesting any interest in the land itself in the partnership, but which does provide for a division of the profits on a resale of the land, in consideration of services in managing or selling it, and the like, is generally held not to be within the statute.1 Thus an oral contract whereby a grantee of realty agrees in consideration of the conveyance to him to sell the realty conveyed and to divide the profits with the grantor is not within the statute after the realty is conveyed to a third person,2 even if the contract to sell the realty could not have been enforced.3 Contracts of this class are much like contracts to pay an agent for his services in selling realty, which are held not to be within the statute.4 Thus in one of the cases cited, A, the owner of realty, conveyed it to B, his agent, for its sale, as a matter of convenience, B to sell the realty and account to A for the proceeds. The contract was held not within the statute.5

(2) A contract between two or more persons to buy land not then owned by any one of them on behalf of the partnership, to resell it and divide the profits and losses is in most jurisdictions held not to be within this clause of the statute.6 Even contracts to buy a specific tract of realty, resell it and divide the profits are held not to be within the statute,7 or to acquire an estate for years in a particular mine.8

1 Stuart v. Mott, 23 Can. S. C. 153, 384; Wright v. Smith, 105 Fed. 841; 45 C. C. A. 87; McElroy v. Swope, 47 Fed. 380; McClintock v. Thweatt, - Ark. -; 73 S. W. 1093; Price v. Sturgis, 44 Cal. 591; Von Trotha v. Bamberger, 15 Colo. 1; 24 Pac. 883; Bunnel v. Taintor, 4 Conn. 568; Kilbourn v. Latta, 5 Mack (D. C.) 304; 60 Am. Rep. 373; Miller v. Kendig, 55 la. 174; 7 N. W. 500; Bruns v. Spalding, 90 Md. 349; 45 Atl. 194; Petrie v. Torrent, 88 Mich. 43; 49 N. W. 1076; Snyder v. Wolford, 33 Minn. 175; 53 Am. Rep. 22; 22 N. W. 254; Pitman v. Hodge, 67 N. H. 101; 36 Atl. 605; Robbins v. McKnight. 1 Halst. (N. J.) 642; 45 Am. Dec. 406; Coffin v. Mcintosh, 9 Utah 315; 34

Pac. 247; Knauss v. Cahoon, 7 Utah 182; 26 Pac. 295; Bruce v. Hastings, 41 Vt. 380; 98 Am. Dec. 592; Treat v. Hiles, 68 Wis. 344; 60 Am. Rep. 858; 32 N. W. 517.

2 Collins v. Tillou, 26 Conn. 368; 68 Am. Dec. 398; Parker v. Siple, 76 Ind. 345; Miller v. Kendig, 55 la. 174; 7 N. W. 500; Linscott v. Mclntire. 15 Me. 201; 33 Am. Dec. 602; Hall v. Hall. 8 N. H. 129; Michael v. Foil, 100 N. C. 178; 6 Am. St. Rep. 577; 6 S. E. 264.

3 Miller v. Kendig, 55 la. 174; 7 N. W. 500; Linscott v. Mclntire, 15 Me. 201; 33 Am. Dec. 602.

4 See Sec. 664.

5 Collins v. Tillou, 26 Conn. 368; 68 Am: Dec. 398.

The courts which take this view of these contracts do not always agree as to grounds on which their decisions rest. It is "a close question" and beset with difficulties."9 The reason generally assigned is that as the lands are to be purchased with partnership funds a resulting trust arises, no matter to whom the legal title is conveyed, and irrespective of any contract, and that as the profits are to be divided the contract does not affect any interest in the realty itself. Another reason assigned is that after one partner has received the proceeds of the sale, he is estopped from denying the contract under which he acquired it.10 Some courts have said that the contract to sell the land is unenforceable, but that after the sale the contract to divide the proceeds is enforceable.11

6 Dale v. Hamilton, 5 Hare 369; Bates v. Babcock, 95 Cal. 479; 29 Am. St. Rep. 133; 16 L. R. A. 745; 30 Pac. 605; Meagher v. Reed, 14 Colo. 335; sub nomine, Reed v. Meagher, 9 L. R. A. 455; 24 Pac. 681; Van Housen v. Copeland, 180 111. 74; 54 N. E. 169; affirming 79 111. App. 139; Speyer v. Desjardins, 144 111. 641; 36 Am. St. Rep. 473; 32 X. E. 283; Allison v. Perry, 130 111. 9; 22 N. E. 492; affirming, 28 111. App. 396; Holman v. McCrary, 51 Ind. 358; 19 Am. Rep. 735; Richards v. Grinnell, 63 la. 44; 50 Am. Rep. 727; 18 N. W. 668; Fountain v. Menard, 53 Minn. 443; 39 Am. St. Rep. 617; 55 N. W. 601; Newell v. Cochran, 41 Minn. 374; 43 N. W. 84; Perronette v. Pryme, 34 X. J. Eq. 26; Chester v. Dicker-son. .54 X. Y. 1; 13 Am. Rep. 550; Flower v. Barnekoff, 20 Or. 132; 11 L. R. A. 149; 25 Pac. 370; Davenport v. Buchanan, 6 S. D. 376; 61 N. W. 47; Case v. Seger, 4 Wash. 492; 30 Pac. 646.

7 Bates v. Babcock, 95 Cal. 479; 29 Am. St. Rep. 133; 16 L. R. A. 745; 30 Pac. 605; Dudley v. Little-field, 21 Me. 418; Fountain v. Menard, 53 Minn. 443; 39 Am. St. Rep. 617; 55 X. W. 601; Williams v. Gillies, 75 X. Y. 197; Chester v. Dick-erson, 54 X. Y. 1; 13 Am. Rep. 550.

8 Meagher v. Reed, 14 Colo. 335; sub nomine, Reed v. Meagher, 9 L. R. A. 455; 24 Pac. 681.

9 Speyer v. Desjardins, 144 111. 641; 36 Am. St. Rep. 473; 32 N. E. 283.

10 Flower v. Barnekoff, 20 Or. 132; 11 L. R. A. 149; 25 Pac. 370.

11 Sprague v. Bond, 108 X. C. 382; 13 S. E. 143; Smith v. Putnam, 107 Wis. 155; 82 X. W. 1077; 83 N. W. 288.

In some jurisdictions contracts for the purchase of realty, to vest in the partnership in fixed proportions, are within the statute.12

In Wisconsin it is "settled and not open to discussion" that partnership contracts for the purchase of realty are within the statute.13 Contracts of this class are much like contracts whereby A agrees to convey to B a part of the realty which he is about to buy from X, which contracts are generally held to be within the statute.14

(3) A contract by which land already owned by one is to be put into partnership assets is within the statute.15