Blair Town Lot & Land Co. v. Walker

39 Iowa 406 | Iowa | 1874

. Cole, J.

I. The first question made by the demurrer is, whether the contract, upon which the cross claim is based, comes within our statute of frauds, which provides, Rev., Sec. 4006-7, subdivision 5, that no evidence is competent, unless in writing, of a contract “ that is not to be performed within one year from the making, thereof.” Code of 1873, Sec. 3663-4, is the same, and' the language is almost identical with the original statute of frauds of 29 Car. II. The authorities upon the question are not in perfect harmony, so far at least as respects their language or form of expression. The leading ease of Peter v. Compton, Skinner, 353, s. c. 1 Smith’s L. C., 143, was decided within a few years after the enactment of the original statute of 29 Car. II., and is stated in the head note as follows: “‘An agreement that is not to be performed within one year from the making thereof’ means, in the statute of frauds, an agreement which appears from its terms to be imoapable of performance within the year.” "While the .language of the report is: “ Where it appears by the tenor of the agreement that it is to be performed after the year, there a note (in writing) is necessary; otherwise not.” Again it is said, per Denison, J., in Fenton v. Emblers, 3 Burr, 1278, s. c. 1 Wm. Blackstone, 353, “the statute of frauds plainly means an agreement not to be performed within the space of a year, and exjuessly and specifically so agreed; it does not extend to cases where the thing may be performed within the year.” And the learned annotator of the. American cases, in his notes to Peter v. Compton, 1 Smith’s L. C., 143, says.: “But the statute'will not apply, when the contract can, by -any possibility, be fulfilled or completed in the space of ,a .year, although the parties may have expected that its operation would extend through a much longer period. Citing Kent v. Kent, 18 Pick., 569; Peters v. Westborough, 19 Ib., 364; Blake v. Cole, 22 Ib., 97; Souch v. Strawbridge, 2 C. B., 808; Clark v. Pendleton, 20 Conn., 495; Derby v. Phelps, 2 N. H., 515; Russell v. Slade, 12 Conn., 455; M’Lees v. Hale, 10 Wend., 426; Plimpton v. Curtiss, 15 Ib., 336.” See further, Peter v. Compton, 1 Smith’s L. C., 143, et seq.; Smith on Contracts, 109-114; Pars, on Contr., 2 Vol., 45 and 3 Vol. 35, et seq., and the cases cited in the notes to each.

■ toe^tohe011" wftMini year: evidence. Further reference to cases need not be here made. • The difference in the manner of stating the meaning of the statute does not always indicate a different construetion; and it is not impossible that a careful analysis Rm cases might exhibit more harmony in result, than the different forms of expression would, at first, seem to indicate. It will be observed that the statute is negative in its language — any contract that is not to be performed within one year from the making thereof. It is not sufficient to bring a case within the statute, that the parties did not contemplate the performance within a year; but there must be a negation of the right to perform it within the year. This negation of the right to perform within the year, may be shown by an express stipulation in the contract that it shall not be performed within that time; by an express stipulation to be occupied more than that time in the performance; by a contract, the terms of which cannot, per possibility, be performed within the year; by a contract, the terms of which show, though not in express language, that the party has no right to perform it within the year. Unless the contract comes within one of these classes, it is not within the 'statute.

■ It is not sufficient to bring it within the statute, that the parties manifestly intended to occupy more than a year in its performance, or that it is difficult to so perform, or improbable that it can be performed within that time, so long as the right to perform it within the year remains, and it is possible to do it. In other words,-to be within the statute, the contract itself must show from the nature of its subject matter, by its express terms, or by its necessary implication, that its performance within the year is forbidden — it must show that it is not to be performed. The statute does not require that the contract must be performed within the year, but it requires that the contract shall show that it must not be performed in order to render it invalid. In this case, there is nothing in 'the contract alleged in the cross claim, which shows that it was not to be performed within a year, how difficult-or improbable soever its performance within that time might have been. It is, therefore, not within the statute.

2__. • |ay the debt of another, II. The second question made by demurrer is, whether the contract alleged, so far as respects the promise of plaintiff to perform the obligations of Blair, is within the fhírá subdivision of our statute of frauds, which renders contracts to answer for the debt, default, or miscarriage of another, incompetent, unless in'writing and signed by the party charged. The contract alleged is, that the plaintiff, in consideration of the conveyance of lands and lots, agreed to discharge Blair’s obligations to defendant arising out of them. This is clearly a case where the promise to pay the debt of another arises out of a new and original consideration moving between the newly contracting parties, and is not within the statute. The plaintiff is under obligation to pay its own debt or consideration for the land and lois, and the fact that, by doing so, it will also discharge a debt of Blair’s, does not render its agreement to pay any the less binding. ¥e have recently ruled this point the same way, several times. See Johnson v. Knapp, 36 Iowa, 616, and cases cited; Chamberlin v. Ingalls, 38 Ib., 300.

Beversed.