44 Barb. 162 | N.Y. Sup. Ct. | 1864
The principal question in this case is, whether the agreement sued on is within that provision of the statute of frauds which makes void every oral agreement that, by its terms, is not to be performed within one year from the making thereof.
The report of the referee establishes the following facts: In October, 1855, the plaintiff let the defendants have ten sheep of a certain quality and grade of wool, to double in four years; that is, the defendants agreed to deliver to the plaintiff, at the end of four years, twenty sheep of as good quality and grade, but not the same sheep as those they received of the plaintiff. At the expiration of four years, the parties made another agreement, by which the defendants, in lieu of delivering to the plaintiff twenty sheep according to the terms of the first contract, promised to deliver him forty sheep of as good quality and grade, at the end of four years more, which the plaintiff promised to accept in lieu of said twenty sheep. Neither of the agreements was in writing. This suit is brought upon the last agreement.
There is no question that the first agreement between the parties was a sale of the ten sheep, and not a bailment. (3 Seld. 433.) And it was fully executed on the part of the plaintiff, at the time it was made, by the delivery of the sheep.
On the part of the defendants, however, the agreement was wholly executory, and by its terms it was not to be performed until the expiration of four years from the time when it was made. ,In fact the defendants never performed it, but at the expiration of the four years they agreed to deliver to the plaintiff forty sheep at the end of four years more, and the plaintiff accepted the second undertaking in lieu of the twenty sheep then due, and in consideration thereof released
The plaintiff argues that this construction of the agreement of the defendants is incorrect for the reason that there was no express stipulation that it was not to be performed within a year, and the defendants might have performed within that period. That position is untenable. The defendants were to deliver the forty sheep at the end of four years. The object of the parties was to allow time for sheep to double. The defendants could not have compelled the plaintiff to accept the sheep within the four years; and a tender within that period would not have been good. It was therefore not in the power of the defendants to perform within one year. (7 Cowen, 263.)
The plaintiff also insists that as the agreement was wholly executed on his part, it is not within the statute, although executory on the part of the defendants. On this point, the reported cases in England and in this country, are somewhat conflicting. Most of them are referred to in 1 Smith’s Leading Cases, pages 432, 437. In Pierce v. Paige (28 Verm. Rep. 34) the question is discussed with care and ability, and a conclusion is reached adverse to the position of the plaintiff in the case before us. My attention has not been called to any case in this state which can be regarded as an authoritative adjudication of the question. In Broadwell v. Getman, (2 Denio, 87,) Beardsley, J. expressed the opinion that a parol agreement is within the statute, although one of the
1. The agreement is within the language of the statute, which by allowable transposition may be read thus : “ Every agreement, that, by its terms,, is not to be performed within one year from the making thereof, shall be void unless such agreement or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party to be charged therewith.” An agreement upon an executed consideration is not excepted.
2. It is within the object of the statute, which is to provide against the danger of allowing contracts to be proved by parol evidence, at periods remote from those at which they were made. This species of evidence is equally dangerous and unsatisfactory whether the promise sought to be established thereby, rests upon an executed or an executory consideration.
These propositions are decisive of the case, since a ruling contrary to them would virtually repeal the statute.
But although the agreement on which a party relies is void by the statute, he is not, in general, without remedy,
The other positions taken by the plaintiff, on the argument, do not require consideration.
Judgment affirmed.
J. 0. Smith, Welles and X Darwin Smith, Justices.]