Broadwell v. Getman, 2 Denio 87

Broadwell v. Getman

2 Denio 87 | N.Y. Sup. Ct. | 1846

By the Court, Beardsley, J.

The special agreement between these parties was to endure for nearly two years. It was made on the first of January, 1841, atid although the clearing was to be done by a year from the next spring, the defendant was to have the use of the land for a crop to be put in by him at that time.

By the statute every agreement which by its terms is not to be performed within one year from the making thereof, is declared to be void, unless in writing and subscribed by the party to be charged therewith. (2 R. S. 135. § 2, sub. 1.) Agreements which may be completed within one year are not within the statute: it extends to such only as by their express terms are not to be, and cannot be carried into full and complete execution until after the expiration of that period of time. (Fenton v. Emblers, 3 Burr. 1278; Boydell v Drummond, 11 East, 142; Bracegirdle v. Heald, 1 Barn. & Ald. 723; Chit. on Cont. 67; 1 Smith's Leading Cases and Notes, Phil. ed. 143; Lockwood v. Barnes, 3 Hill, 128; Russell v. Slade, 12 Conn. R. 455.)

*89The word “ agreement,” as used in this section, signifies ££a mutual contract on consideration between two or more persons,” and ex vi termini, includes the several parties to the contract and their respective stipulations : every thing, indeed, which is to be done on both sides. (Wain v. Warlters, 5 East, 10; Sears v. Brink, 3 John. 210; Sherburne v. Shaw, 1 N. Hamp. R. 157; Champion v. Plummer, (1 New R. 252;) 2 Stark. Ev. 482, Phil. ed. of 1842.) In this case there were mutual stipulations between the parties : the defendant was to clear the land and in part make a fence at one end of the lot. This fence was to be completed by the plaintiff; and he stipulated that the defendant should have all the timber cut on the land except what might be required for the fence, and also the use of the land for a summer crop in 1842. As this agreement was made in January, 1841, and could not be completely executed until the close of the season of 1842, 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. An agreement is an entire thing, and where that cannot be completely executed, on both sides, until more than a year has elapsed, the case falls within the express words of the enactment. It is also within its spirit, for “ the mischief meant to be prevented by the statute, was the leaving to memory the terms of a contract for longer time than a year. The persons might die who were to prove it; or they might lose their faithful recollection of the terms of it.” (Bailey, J. 11 East, 159; 1 Ld. Raym. 316.)

The general principle is firmly settled that although the agreement requires a part performance within a year, and is so far faithfully executed, still it is void, unless reduced to writing, if other stipulations remain to be executed after the close of the year. (Lockwood v. Barnes, supra.) But notwithstanding the apparent universality and soundness of this position, it is laid down by some elementary writers that the statute does not extend tc contracts, “ where all that is to be done by one of üv. parties is to be done within a year.” (2 Leigh’s N. P. 1045; Chit, on Cont. 69; Long on Sales, 56.) This distinction had *90been suggested in Boydell v. Drummond and Bracegirdle v Heald, (supra,) and was finally acted upon in the case of Donellan v. Read, (3 Barn. & Adol. 899,) which was decided in 1832. In the last case, Littledale, J. who delivered the opinion-of the court said, “ as to the contract not being to be performed within a year, we think that as Ihe contract was entirely executed on one side within a year, and as it was the intention of the parties, founded on a reasonable expectation, that it should be so, the statute of frauds does not extend to such a case. In case of a parol sale of goods, it often happens that they are no<; to be paid for in full till after the expiration of a longer period of time than a year; and surely the law would not sanction a defence on that ground, when the buyer had had the full benefit of the goods on his part.” (See also Holbrook v. Armstrong, 1 Fairf. R. 31.) The principle affirmed in these cases has no application to the present case; for here the party seeking to enforce the contract was not to perform all its stipulations, on his part, within the year: he was to permit the defendant to occupy and use the 'land through the season of 1842, which time did not commence until more than a year after the contract had been entered into. But I would not be understood as yielding my assent to the principle stated. It seems to me in plain violation of the statute. Every verbal contract which is not to be performed within a year from, the making thereof, is declared to- be void. Although the terms of the agreement may require full performance on one side within a year, I do not see how this can exclude it from the statute, the other side being incapable of execution until after the year has elapsed. The agreement is entire, and if it cannot be executed fully, on both sides, within the year, I think it is void. What difference does it make that one party can, while the other cannot, complete the contract within a year? Such an agreement is not, in terms, excepted from the statute, and the reason for the enactment applies to it with full force. But it is unnecessary to pursue this subject; and I dismiss it with the remark that all Lough where one party has fully performed on his part within the year, the agreement may notwithstanding be void, still he is *91not remediless, for he may maintain a general indebitatus assumpsit against the party who refuses to proceed further under the contract, and thus recover a compensation for what has been, advanced and received upon it. (Lockwood v. Barnes, Holbrook v. Armstrong, supra; see also Smith's Leading Cases, as referred to above; Mavor v. Pyne, 2 Car. & Payne, 91, and 3 Bing. 285.)

The contract was void and the plaintiff should not have recovered, as he did, for its violation.

Judgment reversed.