Page images
PDF
EPUB

ue, industry, and love of country thane manent home around which gatber ections of the family, and to which mbers fondly turn, however widely the s become dispersed.""' This reddit ked with the grander and fundament ison that tenantry is unfavorable to free m and lays the foundation for separate **

- in society, gives us the foundation to se laws. Then upon these reasons is 2 otection of the family, which reason 4 ren must exist or the law can give no redz » law can exist without first a reason f.a actment; a wrong to be either prevented : rrected by an adequate remedy st bar aderlying the spirit of all homestesia option laws is the protection of tbe fis ': protection from the wild speculatives provident tendencies of the husband & ther. When the natural protector of mily fails, the law steps in, puts its se 'm around the defenseless family, kizi ires for them, protects them in a home, tu om the avarice of creditors. If no esta

conditions as they exist in the present." The the correct import of words, tell us that the learned judge further says, "that the leading word "family'' in its origin meant servants ; idea upon which the constitution and statutes that this was the signification of the primitive are predicated is the protection of the family. word. It now, however, has a more compreTo carry out this intent, the homestead of hensive meaning, and embraces a collective the head of the family is protected from body of persons living together witbin the forced sale. Any individual of either sex may curtilages. This may be assumed as the genbe the head of a family.” It is not neces- eric description of a family. It may, and no sary that the head of a family should be a doubt does, have many specific senses in married person. The family may consist of which it is often used, arising from the pauthe wife and busband or husband, wife and city of our own as well as other languages. children, or of other persons who may stand Examining and criticising the word in all its in a state of dependence in the family rela- specific uses and appropriations, it will be tion, or it may consist of persons who stand most obvious that it was in none of the spein either of those relations to the head of the cific senses the term “family” was used in the family, whether the father or mother or constitutions and exemption statutes. Its brother or a sister or other relative is the head ; use in such a sense would have been objectbut they must be persons who are dependent, 'less and nugatory because it would be wholly in some measure on the head for support, impracticable in its application to the civil and would be prejudiced by the seizure and affairs of mankind. It was most certainly sale of the home under execution. That a used in its generic sense, embracing a housefamily must exist and is indispensable to the hold composed of parents and children or creation of the estate of homestead the other relatives, or doniestics and servants ; weight of authority sustains. A Georgia in short, every collective body of persons case holds that a widow without children is living together within the same curtilage, Dot entitled to the benefit of homestead. substituting in common, directing their attenThis we must say is going a long ways to

tion to a common object-the promotion of carry out the intent of the law for it is surely their mutual interest and social bappiness. one of the beneficent objects of the law to

These must have been the characteristics of maintain a home for the wife and mother

the family' contemplated by the framers of when she is left alone. I do not think it was the various constitutions in ingrafting this ever intended that the benefit should ever

provision upon them. It is, besides, the enure to the father or husband when left

most popular acceptation of the word, and is witboat wile or child or other dependencies ;

more fully in unison with the beneficent but should in case of the wife or mother for

conception of the political power of the State she is the primary object of the protective

in making so humane and wise a concession A person that is a as that of the inviolability of a homestead boarder

, keeping no home of which he is the from all invasion by legal process. Giving head cannot claim the benefits of homestead.

these laws a liberal, fair and just construc

tion we can but say that the homestead does the law to encourage the building up of home, with home influences which is the prime factor

not survive the family. Any other construction would turn the judicial part of our gove ernment into a legislative body which is prohibited by the fundamental law.3

R. H. JAQUITH.

e body of persons can invoke the protein I these laws till they are denominated stk ý does it not stand to reason that on : imily relation cessing, the reason for 24 iw ceases to exist? The reason gone. in ot good logic to say the law ceases evalk v. Kramer, we find an opinion is 1 worthy of careful thought and sta

logical reasoning and just interpretato f the law. The court says: "The langue" sed in the constitution can be given bası pnstruction, that is, a family must esist! pre the homestead right vests ; once let. fill continue until the family relation lesz s creation is for the family, the family he reason for the law is gone, and when : pason exists why shonld not the pork so cease? As the end contemplated bf .. w can no longer be attained, why sty. e means be preserved when they are Jore wanted? As the law will not sllors

features of the law.

This is right for it is one of the purposes of

in civilization. The home around which cen.
ters all forms of government, good or evil is
the heart whose each pulsation sends through
ita

many avenues pure life blood or corrup-
tion which will build up or tear down every
fabric of government as the case may be.
There can be no home without a family.
There can be no family of less number of
persons than two. A widower without any
ope dependent upon him is not a family.

Jdividual the right before he becomes i

pad of a family, why should it allows
is right after he ceases to be suck: Po

Ty reason why the law will not allost?
Je one case is equally applicable is 2"

3 Meader v. Place, 48 N. H. 307; Atkinson v. Atkin son, 40 N. H. 249; Byers v. Byers, 21 Iowa, 268; Woods v. Davis, 31 Iowa, 264; Redfern v. Redfern, 38 111.509; Reeves v. Petty, 44 Texas, 251; Burns v. Jones, 37 Texas, 50; Peltz v. Barrett, 37 Texas, 84; McQuade v. Whaley, 31 California, 535; Barney y. Seeds, 51 N. H. 273; Sec. 70, Thompson on Homestead and Exemp. tion; Doyle v. Coburn, 6 Allen, 73; Silloway v. Brown, 12 Allen, 34; Poor v. Hudson Insurance Co., 2 Fed. Rep. 438; Wbally v. Whally, 50 Mo.577; Bebb v. Cross, 39 Kan. 342; Dendy v. Gamble, 64 Ga. 528.

ber. The law cannot anticipate what is

Lexicographers, from whom, in our literary

education, we derive all our knowledge of

pe place, but can only deal with face

Campbell v. Adair, 46 Miss. 182.
8 Cal. 66. Approved in McQuade
11. 535.

STATUTE OF FRAUDS-CONTRACT NOT TO BE That was an action upon an oral agreement, by

PERFORMED IN A YEAR GRANT OF AN
EASEMENT IN REALTY.

which the defendant promised, for one guinea

paid, to pay the plaintiff so many at the day of
WARNER V. TEXAS & P. RY. CO.

his marriage; and the marriage did not happen
within the year.

The case was considered by all
Supreme Court of United States, November 30, 1896.

the judges. Lord Holt "was of opinion that it

ought to have been in writing, because the de1. A verbal contract to maintain a switch for plaintift's benefit for shipping purposes "so long as he may

sign of the statute was, not to trust to the memory

of witnesses for a longer, time than one year." need it" is not within the statute of frauds as being a contract not to be performed within a year.

But the great majority of the judges were of 2. A verbal contract to build and maintain a switch

opinion that the statute included those agreefor plaintiff's benetit for shipping purposes, so long

ments only that were impossible to be performed as he may need it, is not a grant of an "estate of in

within the year, and that the case was not within beritance, for more than one year, in lands and tene.

the statute, because the marriage. might have ments," within the meaning of the Texas statute of

happened witbin a year after the agreement; and frauds.

laid down this rule: “Where the agreement is Mr. JUSTICE GRAY: The statute of frauds of

to be performed upon a contingent, and it does the State of Texas, re-enacting, in this particu

not appear within the agreement that it is to be lar, the English statute of 29 Car. II, ch. 3, § 4

performed after the year, then a note in writing (1677), provides that no action shall be brought

is not necessary, for the contingent might happen "upon any agreement which is not to be per

within the year; but where it appears by the formed within the space of one year from the

whole tenor of the agreement that it is to be per. making thereof," unless the "agreement upon

formed after the year, there a note is necessary. which such action shall be brought, or some

Peter v. Compton (1693) Skin. 353; Id., Holt, 326, memorandum or note thereof, shall be in writing,

cited by Lord Holt in Smith v. Westall, 1 Ld. and signed by the party to be charged therewith,

Raym. 316, 317; Anon., Comyn, 49, 50; Comb. or by some person by him thereunto lawfully au

463. thorized.” Tex. St. Jan. 18, 1840; 1 Pasch. Dig.

Accordingly, about the same time, all the (4th Ed.) art. 3875; Rev. St. 1879, art. 2464;

judges held that a promise to pay so much money Bason v. Hughart, 2 Tex. 476, 480.

upon the return of a certain ship, which ship This case has been so fully and ably argued,

happened not to return within two years after the and tbe construction of this clause of the statute

promise made, was not within the statute, "for of frauds has so seldom come before this court,

that by possibility the ship might have returned that it will be useful, before considering the

within a year; and although by accident it happarticular contract now in question, to refer to

pened not to return so soon, yet, they said, tbat some of the principal decisions upon the subject

clause of the statute extends only to such promin the courts of England, and of the several

ises where, by the express appointment of the States,

party, the thing is not to be performed within a In the earliest reported case in England upon

year.” Anon., 1 Salk. 280. this clause of the statute regard seems to have

Again, in a case in the king's bench in 1762, an been had to the time of actual performance in de

agreement to leave money by will was held not to ciding that an oral agreement that, if the plaint

be within the statute, although uncertain as to iff would procure a marriage between tbe defend

the time of performance. Lord Mansfield said ant and a certain lady, the defendant would pay

that the law was settled by the earlier cases. Mr.

Justice Denison said: “The statute of frauds him 50 guineas, was not within the statute; Lord Holt saying: "Though the proinise depends

plainly means an agreement not to be performed upon a contingent, the which may not happen in

within the space of a year, and expressly and a long time, yet, if the contingent happen within

specifically so agreed. A contingency is not a year, the action shall be maintainable, and is

within it; nor any case that depends upon con

tingency. It does not extend to cases where the pot within the statute.“ Francam v. Foster

thing only may be performed within the year; (1692), Sbin. 326; Id., Holt, 25.

and the act cannot be extended further than the A year later, another case before Lord Holt

words of it." And Mr. Justice Wilmot said that presented the question whether the words,

the rule laid down in 1 Salk. 280, above quoted, “agreement not to be performed within one

was the true rule. Fenton v. Emblers, 3 Buryear," should be construed as meaning every

rows, 1278; Id., 1 W. Bl. 353. agreement which need not be performed within

It thus appears to have been the settled conthe year, or as meaning only an agreement which

struction of this clause of the statute in England, could not be performed within the year, and thus,

before the Declaration of Independence, that an according as the one or the other construction

oral agreement which, according to the intention should be adopted, including or excluding an

of the parties, as shown by the terms of the conagreement which might or might not be per

tract, might be fully performed within a year formed witbin the year, without regard to the

from the time it was made, was not within the time of actual performance. The latter was de

statute, although the time of its performance w25 cided to be the true construction.

e Erobably esteed, and be mond, ** bine Om weitead, and 1) in fact appearedil

within a yra' am1! l'aion, it re-enacting In orb

titute of that in its cuatract tim," sa to taken to have adopied as long a* t1,

straction wbich it bad w brid! Les in England. Tucker Obire Jurat14** I 1:14: Pranor's 5, D.xlogue. neat ibat :: I... Hores, Ilo 1.8.514. of one year 1: .. 10146. And the rule e. to contra : die de Non bruserer la of De Pax!" - sampaized in Eczand and fear. That s']" al air, in a few instances. 1 dell .DL.. od supplied.

wbieb in thal, P. Drummond bows, upon II. | Sateen sometimes supposed template it! zu was rails in exact ac.

grater pipen! : ks that case the declaration within the satut Bolese bad proposed to pub- is such tha: 1b: " series of large prints from

a year, and there En d Shakespeare's plays, in cottrars, idea! Long four plaies each, at

In Murphr 1, thanesi a number, parabe as

111, the rourt 4 ounter, at least, to be land, in a series bet ibe delivery of the first; O'Hague 18:**** I became a subscriber for land,. Baron Fit we copied and paid for iwo Chief Justine M

s accept or var for the cases, held that it this issued by the pub.of 7 Wm. III. A. u editions, in substance as spect the wordt * zil and others showing tbe ment to maintai

was not required

In the reipat (18%). 21 Q. B.

raking, and that its comunably take a considerable sering stated that one num1 x published annualls, and peal held tbata:

nicident that ther should busband and wif heito numbers within the ceedinga, by white 1. The book in which the husband agrerin: dis name had only for its

for maintenance

berribers. Their signa. | berself and bar cance to either prospectus. against any day entwrithin the statate of within the stata

priormed within a year, the trae doctrice

ingued in concurriog opin- | down by Chief

and Justice Grose, Le above quoted frui as a contract, according to the Justice Lindley

pendraplation of the parties, statute have been

sport of the contract, was not

ions from which not the completion of the of these decisionsa pari and consequently, | possibility be pe

the Fear.even if physir- ute does not app

[ocr errors]

the contract, and could has been accepte maitshers to demand inn-ject, In Peter

There has been

to whole sobgeription.

agreement that is

3 35). 4 Bing. 40; 11., 12 space of a year fri

Thi beld 10 be settled by in the statute of in in that an agreement by pears from its the interation of bis creditor's ance within the

Endereutor should pay the decision in Murph

selise him during his life- judges took occaany tak ost within the statute; ) and to disapprov

kins, J., in Daves

The cases on the

bet said: "The present case pe from Boydell v. Drum

[graphic]

aym. 316, 317; Anon., Conyn, 49, 50; Cool 63.

Accordingly, about the same time, all in dges held that a promise to pay so much mezi pon the return of a certain ship, which is appened not to return within two years aftertas romise made, was not within the statute, 19 lat by possibility the ship might have returik ithin a year; and although by accident it be ened not to return so soon, yet, they said, the ause of the statute extends only to such prie es where, by the express appointment of the erty, the thing is not to be performed witbit! ar." Anon., 1 Salk. 280. Again, in a case in the king's bench in 1762, freement to leave money by will was held nol

within the statute, although uncertain si i e time of performance. Lord Mansfield at the law was settled by the earlier case. stice Denison said: "The statute of fried ainly means an agreement not to be perferent thin the space of a year, and expressly s ecifically so agreed. A contingency is a thin it; nor any case that depends upon the gency. It does not extend to cases where the ng only may be performed within the relea 1 the act cannot be extended further than the rds of it." And Mr. Justice Wilmot said the

rule laid down in 1 Salk. 280, abore quasi s the true rule. Fenton v. Emblers 3 B vs, 1278; Id., 1 W. Bl. 353.

That was an action upon an oral agreement,

uncertain, and might probably extend, and be mond, where, upon the face of the agreement, it which the defendant promised, for one yeni

expected by the parties to extend, and did in fact appeared that the contract was not to be executed paid, to pay the plaintiff so many at the day di extend, beyond the year.

within a year.” his marriage; and the marriage did not hugga The several States of the Union, in re-enacting In Souch v. Strawbridge (1846), 2 C. B. 808, a within the year. The case was considered by di

this provision of the statute of frauds in its contract to support a child, for a guinea a month, the judges. Lord Holt "was of opinion theli

original words, must be taken to have adopted as long as the child's father should think proper, ought to have been in writing, because the de

the known and settled construction which it had was held not to be within the statute, which, as sign of the statute was, not to trust to the menter

received by judicial decisions in England. Tucker Chief Justice Tindal said, "speaks of 'any agreeof witnesses for a longer time than one year."

T. Oxley, 5 Cranch, 34, 42; Pennock v. Dialogue, ment that is not to be performed within the space But the great majority of the judges were de 2 Pet. 1, 18; McDonald v. Hovey, 110 U. S. 619, of one year from the making thereof;' pointing ppinion that the statute included those gil

628, 4 Sup. Ct. Rep. 142, 146. And the rule es- to contracts the complete performance of which ments only that were impossible to be performed

tablished in England by those decisions has ever is of necessity extended beyond the space of a within the year, and that the case was not with since been generally recognized in England and year. That appears clearly from the case of Boybe statute, because the marriage might be

America, although it may, in a few instances, dell v. Drummond, the rule to be extracted from happened within a year after the agreement; have been warped or misapplied.

which is that, when the agreement distinctly aid down this rule: "Where the agreements

The decision in Boydell v. Drummond (1809), shows, upon the face of it, that the parties cono be performed upon a contingent

, and it is

11 East, 142, which has been sometimes supposed templated its performance to extend over a

to have modified the rule, was really in exact ac10t appear within the agreement that it is nie

greater space of time than one year, the case is performed after the year, then a note in writing

cordance with it. In that case the declaration within the statute; but that, where the contract not necessary, for the contingent might happa

alleged that the Boydells had proposed to pub- is such that the whole may be performed within vithin the year; but where it appears byt

lish by subscription a series of large prints from a year, and there is no express stipulation to the

some of the scenes of Shakespeare's plays, in bole tenor of the agreement that it is to be pa:

contrary, the statute does not apply.” eighteen numbers containing four plates each, at prmed after the year, there a note is necessit."

In Murphy v. O'Sullivan (1866), 11 Ir. Jur. (N. the price of three guineas a number, payable as Peter v. Compton (1693) Skin. 353; Id., Holf,

S.) 111, the court of exchequer chamber in Ireeach was issued, and one number, at least, to be ited by Lord Holt in Smith v. Westall. 112

land, in a series of careful opinions by Mr. Justice annually published after the delivery of the first; O'Hagan (afterwards Lord Chancellor of Ireand that the defendant became a subscriber for land), Baron Fitzgerald, Chief Baron Pigot, and one set of prints, and accepted and paid for two Chief Justice Monahan, reviewing the English numbers, but refused to accept or pay for the cases, held that under the Irish statute of frauds rest. The first prospectus issued by the pub- of 7 Wm. III, ch. 12 (which followed in this relishers stated certain conditions, in substance as spect the words of the English statute), an agreeset out in the declaration, and others showing the ment to maintain and clothe a man during his life magnitude of the undertaking, and that its com- was not required to be in writing. pletion would unavoidably take a considerable In the recent case of McGregor v. McGregor time. A second prospectus stated that one num

(1888), 21 Q. B. Div. 424, the English court of apber, at least, should be published annually, and the proprietors were confident that they should

peal held that a lawful agreement made between

husband and wife, in coinpromise of legal probe enabled to produce two numbers within the

ceedings, by which they agreed to live apart, the course of every year. The book in which the defendant subscribed his name had only for its

husband agreeing to allow the wife a weekly sum title, "Shakespeare Subscribers. Their signa

for maintenance, and she agreeing to maintain tures," without any reference to either prospectus.

herself and her children, and to indemnify him The contract was held to be within the statute of

against any debts contracted by her, was not frauds, as one not to be performed within a year,

within the statute. Lord Esher, M. R., thought because, as was demonstrated in concurring opin

the true doctrine on the subject was that laid lons of Lord Ellenborough and Justice Grose, Le

down by Chief Justice Tindal in the passage Blanc, and Bayley, the contract, according to the

above quoted from Souch v. Strawbridge. Lord understanding and contemplation of the parties,

Justice Lindley said: "The provisions of the as manifested by the terms of the contract, was not

statute have been construed in a series of decisto be fully performed by the completion of the

ions from which we cannot depart. The effect whole work) within the year; and consequently,

of these decisions is that, if the contract can by a fall completion within the year, even if physic

possibility be performed within the year, the statally possible, would not have been according to

ute does not apply." Lord Justice Bowen said: the terms or the intent of the contract, and could

“There has been a decision which for 200 years not have entitled the pablishers to demand im

has been accepted as the leading case on the subject. In Peter V. Compton, it was held that an

agreement that is not to be performed within the Moore, 0. P. 177,- it was held to be settled by

space of a year from the making thereof' means, t thus appears to have been the settled to

in the statute of frauds, an agreement which apwhich a debtor, in consideration of his creditor's

pears from its terms to be incapable of performagreeing to forbear to sue him during his life

ance within the year." And each of the three I agreement which, according to the intenta

judges took occasion to express approval of the the parties, as shown by the terms of the All

decision in Murphy v. O'Sullivan, above cited, and Chief Justice Best said: "The present case

and to disapprove the opposing decision of Hawm the time it was made, was not within the "i clearly distinguishable from Boydell v. Drum

kins, J., in Davey v. Shannon, 4 Exch. Div. 81.

The cases on this subject in the courts of the

action of this clause of the statute in English ore the Declaration of Independence, thalie

et, might be fully performed within p

cute, although the time of its performance ve

[ocr errors]

sambat place. "25 a permanent

“the statute does not apply to any contract, un

Landh biy be competed within W.R4 several States are generally in accord with the less by its express terms or by reasonable con

transasikan the statute. li extends panr, in English cases above cited. They are so numerstruction it is not to be performed, that is, incap

at the express terme are not to

buni tu ous, and have been so fully collected in Browne able in any event of being performed, within one

mied into full exeation line on the Statute of Frauds (5th Ed. ch. 13), that we

rucia shall refer to but few of them, beyond those cited year from the time it is made;"' and that ''if, by

on that time." The con. the ring! by counsel in the case at bar. its terms, or by reasonable construction, the con

Tas an agreement muda berum In Peters v. Westborough, 19 Pick. 364, an tract can be fully performed within a year, al

a stich the deten tant agreed of the unit, agreement to support a girl 12 years old until she though it can only be done by the occurrence of

word and for tbe pisin:ifi, and bare team

is one end of it, which the was 18 was held not to be within the statute. Mr. some contingency by no means likely to happen, Justice Wilde, in delivering judgment, after such as the death of some party or person referred

on the wboit to be done OSB

and ibe defes lant w to those ir 19.1 quoting Peter v. Compton, Fenton v. Emblers, to in the contract, the statute has no application,

oibe Food and tilber. The ?" and Boydell v. Drummond, above cited, said: and no writing is necessary;" and, therefore, that

de tence, and also the crop of the mi "From these authorities it appears to be settled an agreement by a physician to sell out to another

uz the spring of 1). The court at 1 st that, in order to bring a parol agreement within physician his business in a certain town, and to the clause of the statute in question, it must do no more business there, in consideration of a *$1gTerment wa* made Sickles, o

usi vald not be completely I. of lu,!1!1 either have been expressly stipulated by the par- certain sum to be paid in five years, was not

the season of 1942. it was 4. in fata ties, or it must appear to bave been so understood •within the statute, because, “if the defendant bad

4. Bor being in writing, and Distritof! by them, that the agreement was not to be per- died within a year from the making of the con

Cez ibis point it would seem licort. Po formed within a year. And this stipulation or tract, having kept his agreement while he lived,

opon the terms of the richi understanding is to be absolute and certain, and his contract would have been fully performed."

TH1: W . * not to depend upon any contingency. And this, The decisions in other States are to the same ef

1o., Barb. (h. 221. which to we think, is the clear meaning of the statute. In fect. Browne, St. Frauds, ch. 13, $ 277.

terror, a bill in equity to the present case, the performance of the plaint- In Hinckley v. Southgate, 11 Vt. 428, cited by

paleoli 1.

Ibans to perform an agree off."* to opp iff's agreement with the child's father depended the defendant in error, the contract held to be

Sharkot turpogi track and fect a di on the contingency of her life. If she had con- within the statute of frauds was in express terms

a freight trains and passentinued in the plaintiff's service, and he had sup

od tbatt: to carry on a mill for a year from a future day; ported her, and she had died within a year after

mrhood of the plaintiff if the twins and the suggestion in the opinion that, if the time the making of the agreement, it would have been of performance depends upon a contingency, the

by Chancellor Walworth plaintiff. *.

, be last of wbieb was that, fourths of il. fully performed. And an agreement by parol is test is, whether the contingency will probably

LENT artement to continue to not within the statute when, by the happening of

tained in 1 happen, or may reasonably be expected to happen any contingency, it migbt be performed within a within the year, was not necessary to the decision

contract ili

agrement was within ibe year.” of the case, and cannot stand with the other au.

court, in 15 In many other States, agreements to support a thorities. Browne, St. Frauds, ch. 13, § 279.

800, be!! :. person for life have been held not to be within the

In Linscott v. McIntire, 15 Me. 201, also cited

wake performed by the company and said: statute. Browne, St. Frauds, ch. 13. $ 276. The by the defendant in error, an agreement to sell a

the defend decision of the Supreme Court of Tennessee in

farm at the best advantage, and to pay to the Deaton v. Coal Co., 12 Heisk. 650, cited by the

a feasideration of his son's at stated in.lt plaintiff any sum remaining after refunding the defendant in error, is opposed to the weight of

defendant's advances and paying him for his authority.

trouble, was held not to be within the statute of In Roberts v. Rockbottom Co., 7 Metc. (Mass.)

frauds; Chief Justice Weston saying: "The sale 46, Chief Justice Shaw declared the settled rule did not happen to be made until a year had ex

ance br the to be that, “when the contract may, by its terms,

pired, but it might have taken place at an earlier be fully performed within the year, it is not void period, and there is nothing in the case from

Wall. 394-3 by the statute of frauds, although in some con

which it appears that, in the contemplation of the tingencies it may extend beyond a year;" and parties at the time, it was to be delayed beyond a

Rituated by courts, does not Collis, 1 Hur

v. Liverpooi. stated the case then before the court as follows:

Jenib may or may not be agreement :

year. This clause of the statute has been limited "The contract between the plaintiff and the com

ft from the making, but son, for a tri

to cases where, by the express terms of the agreepany was that they should employ him, and that

ment, the contract was not to be performed withhe should serve them, upon the terms agreed on, in the space of a year. And it has been held to

of the parties, cannot before within :

terminabled five years, or so long as Leforest should conbe no objection that it depended on a contingency,

time. If the agreement | performed w tinue their agent. This is a contract which which might not and did not happen until after

Big terms, be entirely per- | ible within tl might have been fully performed within that time." the year. The legal effect is the same as if it

In Herrin v. Butters, 20 Me. 119, likewise cited

pridat it will be performed assumed, a'li were expressed as an agreement to serve the com

by the defendant in error, the contract held to pany so long as Leforest should continue to be

be within the statule could not possibly have their agent, not exceeding tive years; though the

been performed within the year, for it was to latier expression shows a little more clearly that

clear eleven acres in three years; one acre to be the contract might end within a year, if Leforest seeded down the present spring, one acre the

kad the court, was to execute whether that should quit the agency within that time."

next spring, and one aere the spring following; In Blandiny v. Sargent, 33 V. II. 239, the court

and to receive in consideration thereof all the stated the rule, as established by the authorities proceeds of the land, except the two acres first

nontbly installments of current of 1

Co would necessarily post- stated in the elsewhere, and therefore properly to be consid- seeded down. ered as adopted by the legislature of New Hamp

In Broadwell v. Getman, 2 Denio, 87, the Su

wither party beyond the and pay for ti shire when re-enacting the statute, to be that

preme Court of New York stated the rule thus:

, from its nature and

ran the making thereof. . 1. $), an agreement by portion of t!

tik un upon bis farm, without years, if the debe service, agreed that should la-?

asbould be paid out of his performed w bukit juich did not in fact hapates the son cessed to work, might or in

inte. Judge Allen, delivapa se court of appeals, said:

for the plain their terms, and con

althongh it may not be

In Packet

aan within the condemná- tract, accordi

to be perfor wertine, 6 B. Hlon. 17. cited | ible by an ev

Services the contract proved, as

pen within 1

Let then the purchaser had

terins of the

Hitler, 54 Ark. 199,15 s. should last

continuare

he statute does not apply to any contract. r. su by its express terms or by reasonable me. ruction it is not to be performed, that is, ing: ile in any event of being performed witbis

ir from the time it is made;" and that it is . terins, or by reasonable construction, the car. uct can be fully performed within a peara. bolgh it can only be done by the occurrent me contingency by no means likely to bapter ch as the death of some party or person tekem

in the contract, the statute has no applicant Id no writing is necessary;" and, therefore

, I agreement by a physician to sell out to apo:tIr-ician his business in a certain town. ju?

no more business there, in consideration et rtain sum to be paid in five years, 131 thin the statute, because, --if the defendants ed witbin a year from the making of the die iet, having kept bis agreement while be free - contract would have been fully performed.

" le decisions in other States are to the 24 it. Browne, St. Frauds, ch. 13. $ 277. In Hinckley v. Southgate, 11 Vt. 428. cited by e defendant in error, the contract held te le thin the statute of frauds was in express Kit carry on a mill for a year from a future i d the suggestion in the opinion that, if the ti performance depends upon a contingency

, bu it is whether the contingency will protest

*Agreements which may be completed within one year are not within the statute. It extends to sach only as by their express terms are not to be, and cannot be carried into full execution until after the expiration of that time.” The contract there sued on was an agreement made in January, 1841, by which the defendant agreed to clear a piece of woodland for the plaintiff, and to partly make a fence at one end of it, which the plaintiff was to complete, the whole to be done by the spring of 1842; and the defendant was to bare for his compensation the wood and timber, except that used for the fence, and also the crop to be put in by him in the spring of 1842. The court well said: “As this agreement was made in January, 1841, and could not be completely executed until the close of the season of 1812, it was within the statute; and, not being in writing, and signed, was void. Upon this point it would seem difficult to raise a doubt upon the terms of the statute."

In Pitkin v. Railroad Co., 2 Barb. Ch. 221,
cited by the defendant in error, a bill in equity to
compel a railroad company to perform an agree-
ment to maintain a permanent turnout track and
stopping place for its freight trains and passen-
ger cars in the neighborhood of the plaintiff's
property was dismissed by Chancellor Walworth
upon several grounds, the last of which was that,
as a mere executory agreement to continue to
stop with its cars at that place, as a permanent
arrangement," the agreement was within the
statute of frauds, because, from its nature and
terus, it was not to be performed by the company
within one year from the making thereof.

In Kent v. Kent, 62 N. Y. 560, an agreement by
which a father, in consideration of his son's
agreeing to work for him upon bis farm, without
specifying any time for the service, agreed that
the value of the work should be paid out of his
estate after his death, which did not in fact hap-
pen until 20 years after the son ceased to work,
was not within the statute. Judge Allen, deliv-
ering the judgment of the court of appeals, said:
"The statute, as interpreted by courts, does not
include agreements which may or may not be
performed within one year from the making, but
merely tbose which within their terms, and con-
sistent with the rights of the parties, cannot be
performed within that time. If the agreement
tay. consistently with its terms, be entirely per-
formed within the year, although it may not be
probable or expected that it will be performed
within that time, it is not within the condemná-

ppen, or may reasonably be expected to happe thin the year, was not necessary to the design the case, and cannot stand with the other it orities. Browne, St. Frauds, ch. 13. 27 In Linscott v. McIntire, 15 Me. 201, alu rik

the defendant in error, an agreement w se 'm at the best advantage, and to par to vintiff any sum remaining after refundide a fendant's advances and paring bim te 3 uble, was held not to be within the states uds: Chief Justice Weston saying: "These I not happen to be made until a Fear hade ed, but it migbt have taken place at an ezita riod, and there is nothing

the case fu ich it appears that, in the contemplatice ef's rties at the time, it was to be delayed before! ir. This clause of the statute has been lisil cases where, by the express terins of the inte nt, the contract was not to be performed i the space of a year. And it has been belly no objection that it depended on a continent ich might not and did not happen until 22 t time." n Herrin v. Butters, 20 Me. 119, likewise it's the defendant in error, ibe contract balk within the statute could not possibis dili in performed within the year, for is it ar eleven acres in three years: one aer so be ded down the present spring, it spring, and one acre the spring folgt: I 10 receive in consideration thereof a 3

W. Rep. 465, a contract by which a railway company, in consideration of being permitted to build its road over a man's land agreed to construct and maintain cattle guards on each side of the road, was held not to be within the statute, because it was contingent upon the continuance of the use of the land for a railroad, which might have ceased witbin a year. And a like decision was made in Sweet v. Lumber Co., 56 Ark. 629, 20 S. W. Rep. 514, upon facts almost exactly like those in the case at bar.

The construction and application of this clause of the statute of frauds first came before this court at December Term, 1866, in Packet Co. v. Sickles, 5 Wall. 580, whicb arose in the District of Columbia under the statute of 29 Car. II, ch. 3, $ 4, in force in the State of Maryland and in the District of Columbia. Alex. Br. St. Md. 509; Ellicott v. Peterson, 13 Md. 476, 487; Comp. St. D. C. ch. 23, $ 7.

That was an action upon an oral contract, by which a steamboat company agreed to attach a patented contrivance, known as the Sickles Cutoff,'' to one of its steamboats, and, if it should effect a saving in the consumption of fuel, to use it on that boat during the continuance of the patent, if the boat should last so long; and to pay the plaintiffs weekly, for the use of the cut-off, threefourths of the value of the fuel saved, to be ascertained in a specified manner. At the date of the contract the patent bad 12 years to run. The court, in an opinion delivered by Mr. Justice Nelson, held the contract to be within the statute, and said: “The substance of the contract is that the defendants are to pay in money a certain proportion of the ascertained value of the fuel saved at stated intervals throughout the period of twelve years, if the boat to which the cut-off is attached should last so long." "It is a contract not to be performed within the year, subject to a defeasance by the happening of a certain event, which might or might not occur within that time.” 5 Wall. 594-596. And reference was made to Birch v. Liverpooi, 9 Barn. & C. 392, and Dobson v. Collis, 1 Hurl. & N. 81, in each of which the agreement was for the hire of a thing, or of a person, for a term specified of more than a year, determinable by notice within the year, and therefore within the statute, because it was not to be performed within a year, although it was defeasible within that period.

In Packet Co. v. Sickles it appears to have been assumed, almost without discussion, that the contract, according to its true construction, was not to be performed in less than 12 years, but defeasible by an event which might or might not happen within that time. It may well be doubted whether that view can be reconciled with the terms of the contract itself, or with the general current of the authorities. The contract, as stated in the forepart of the opinion was to use and pay for the cut-off upon the boat “during the continuance of the said patent, if the said boat should last so long." 5 Wall. 581, 594. The

one or

tion of the statute."

In Saunders v. Kasterbine, 6 B. Mon. 17, cited by the defendant in error, the contract proved, as stated in the opinion of the court, was to execute a bill of sale of a slave when the purchaser had paid the price of $400 in monthly installments of from $1 to $8 each, which would necessarily postpoze performance by either party beyond the

Fear.

veeeds of the land, except the two NCTE

ded down.

In Railway Co. v. Whitley, 54 Ark. 199, 15 S.

a Broadwell v. Getman, 2 Denio, 8.1

me Court of Vew York stated the sale i

« PreviousContinue »