| Ill. | Apr 15, 1864
delivered the opinion of the Court:
It is assigned as error on this record, that the Circuit Court allowed the plaintiff to amend his declaration after the commencement of the trial, and after some of the jurors had been called, and denying the motion of the defendant for a continuance by reason of that amendment.
To determine whether this error is well assigned, and as it is preliminary to the consideration of the merits of the case, we must understand the condition of the pleadings at the time, and the character of the amendment.
In one of the counts of the declaration, reference was made to a certain deed, giving the names of the parties to it and date of the deed in “ the following words and figures.” In brackets' were these words [here insert the deed]. The amendment consisted in filling the bracketed space with a full copy of the deed. This insertion of the deed itself could not operate as a surprise on the defendant, for the count specified the deed by its parties and its date. It need not have been inserted, in haee verba, in the declaration, but could have been used as evidence on identifying it, as the deed to which reference was made.
We have given as much time as we have had at our disposal to the examination of this record, which is very voluminous, to get at the real merits of the case, and have come to the conclusion that we could not better dispose of it than by adopting the opinion of the learned judge who tried the cause, delivered on overruling the motion for a new trial, and which is preserved in the record, and referred to by the counsel for the plaintiff in error. It embraces the principal features of the case, and meets our full concurrence.
That learned judge says: “An examination of the cases cited in the briefs of the counsel has satisfied me that this promise is not to be classed among those which may, by some contingency, be performable within the year, for the reason that, under no possible contingency, could the plaintiff have acquired the right of action on this promise within one year after the promise was made. This fact distinguishes this case from the case in 5 Hill. There the money was promised to be paid as soon as it was received on the mortgage, and, although the mortgage was not due for two years, yet it might have been paid sooner, and whenever paid, a right of action at once accrued to the plaintiff in the suit. But in the case before us nothing could occur which would give a right of action on this promise within a year after it was made. But, in investigating the case, I have come to the conclusion that the above considerations are immaterial, for the reason that the contract was executed on the part of the plaintiff as soon as made, and that, therefore, the statute (of frauds) does not apply.
This is a matter entirely distinct from the question of part performance. While the latter consideration arises only in equity, it seems the settled rule, outside of the State of Mew York, that if the contract is completely executed on one side at the time of making it, and if all that remains to be done on the other side is the non-payment of money, then the statute shall not apply merely on the ground that the money was not to be paid within one year. If anything else is to be done besides the payment of money, it is true the statute would apply. And it is in cases of this sort, that the courts have held that the original contract could not be introduced in evidence, even in reference to the quantum of damages, but that the recovery must be had on a quantum meruit.
In the case of Donellan v. Read, decided in the Queen’s Bench in 1832, and reported in 3 Barn. and Adol. 899, the court says, “ as to the contract not being to be performed within the year, we think that as the contract was entirely executed on one side within the year, and as it was the intention of the parties that it should be so, the statute does not apply. In case of a parol sale of goods it often happens that they are not to be paid for in full till after the expiration of a longer period than one year; and surely the law would not sanction a defense on that ground, when the buyer had had the full benefit of the goods on his part.”
This case is quoted in Browne on the Statute of Frauds, p. 288. He discusses the doctrine in sections 286, 287, 288, 289, 290 and 291, and although, indirectly, not satisfied with the rule, and disposed to consider it of recent introduction and not well settled, yet he admits that it is the recognized rule of the English Courts, the last case being in the Court of Exchequer in 1849.
He also says it is recognized in Maine, Massachusetts, and in the Southern and Western States, and quotes the cases, but is not recognized in Mew York.
As the weight of authority is clearly in favor of the rule, and as it seems to be founded in good sense, I am disposed to follow it in this case.
The fact that, in this case, the money was to be paid to an incumbrancer, instead of to the plaintiff directly, would not take the case out of the principle of the rule.”
We have, examined the cases cited in this opinion and they fully sustain it. The case referred to in Brown’s Treatise on the Statute of Frauds, as decided in 1849, is the case of Cherry v. Heming and Needham, 4 Exch. by Welsby, Hurlstone and Gordon, 631. The American cases referred to, sustain the doctrine of the English cases.
In addition, we may say, the jury found an express promise by the plaintiff in error to pay off the incumbrances specified in the deed. Such a promise, is not within the statute of frauds.
We do not deem it necessary to examine, particularly, the many instructions given or refused on which exceptions were taken, although some of them may be liable to some slight objection, yet the merits of the case were fully before the jury, and they could not have been misled to the prejudice of the plaintiff in error, and they have done justice, as appears by the whole record.
The judgment must be affirmed.
Judgment affirmed.