18 N.H. 293 | Superior Court of New Hampshire | 1846
As the case is presented, the court seem to have left it to the jury to find whether there was a contract which the plaintiff could enforce, which is very nearly leaving to them a question of law. But it may be presumed that there were other instructions respecting what would constitute a binding contract. However this may be, there is sufficient in the case to sustain the verdict.
The plaintiff made out a prima fade ease by the proof of the performance of the labor for which he seeks to recover. This the defendant did not deny, but he endeavored to show that the plaintiff entered into a special contract to labor for eight months, and to take a lot of land upon “the Harvey swell” in payment. The jury might well find that there was no competent contract upon the subject. It maybe understood that “ the Harvey swell” is an eminence somewhere, but it does not appear that it is divided into lots, and if it were so, it might be inferred that the parties were to agree what lot or land was to be given and received in payment.
But if this be regarded as an agreement to labor for eight months, and to take land on the Harvey swell in payment, leaving it for the defendant, in ease the parties could not agree, to set out and convey to the plaintiff sufficient land, in payment,— there is no writing, as evidence of that agreement, and the plaintiff could not, upon full performance on his part, enforce that contract against the defendant. He could in such case only maintain an action to recover the value of the labor which he had performed ; the defendant’s promise to convey being within the statute of frauds, and so not binding upon him. And as his possession was the only consideration for the promise of the plaintiff, unless the parties were mutually bound there was no binding contract as to either of them. There being no sufficient consideration for the plaintiff’s promise to labor for the term, he might stop at his pleasure,
If the plaintiff had moved to set aside the verdict, the motion must have prevailed; the instructions that the jury might deduct the damages which the defendant had sustained being erroneous.
Judgment on the verdict.