31 Barb. 548 | N.Y. Sup. Ct. | 1860
The plaintiff claims that in May, 1855, he entered into an agreement with the defendant, by which he was to convey to the defendant a strip of land upon his premises, some 1774 feet in length and some 41 feet in width, and lying alongside of the rail road lands of the defendant ; that the plaintiff was to erect upon his own lands, adjoining the strip so to be conveyed, cattle yards, and pens for stock, swine, sheep, &c, that might be wanted to accommodate the shipping and transferring to and from the cars, the cattle &c., and to provide for feeding the stock, and would build a house prepared to entertain the drovers and men in charge of the stock; and that the defendant, in consideration thereof, was to bring its cattle business upon his farm and to receive and load the cattle &c. there.
What was the nature of the agreement on the' part of the defendant ? Let us analyze and comprehend the agreement. The defendant was to construct a rail road track on its own land, close alongside of the plaintiff’s land, and Was to run its stock train of cars over this track, and stop at certain places, and deliver to the plaintiff, upon his land, all the stock that was to be transported eastward, and was to receive and load them there, to the end that the plaintiff might enjoy the profits to arise from keeping and feeding the stock. Sttppose such agreement valid and binding; would it create any interest in, or trust or power over or concerning the rail road ? It could not be performed without using the rail road, and that too for the benefit of the plaintiff’s land. Would hot such agreement attach to and affect the rail road ? Suppose the defendant had sold its road, to any other corporation, being authorized so to do; could not the plaintiff, if the contract was valid, insist that the vendee should, perform it P The plaintiff’s counsel argues that the contract was personal only, and that it had no effect oh the real estate of the defendant.
It would not be claimed that this contract could by possibility be performed without using the defendant’s road, and that too in a particular manner; It would not satisfy the contract to stop the cars at a distance from the plaintiff’s land, unload the cattle, and drive them to the plaintiff’s pens and yai’ds to be kept and fed, and then drive them back to the defendant’s cars, even if the cattle drovers would consent. No, the right of the plaintiff is that the cattle shall be brought'
If the right claimed had been created by grant, or deed under seal, it would have been a real right, a charge on the defendant’s land for the benefit of the plaintiff as the owner of his land, and such right would have descended to his heirs, or passed by a grant of his land with the appurtenances. It would have been a charge upon the defendant’s estate, for the benefit of the plaintiff’s estate. (3 Kent, 443.)
I have looked carefully into the instruments executed by the plaintiff. They contain no conditions, nor do they contain any thing from which a grant of the right claimed can be implied. ¡Nor were the circumstances such as to create the right by implication. They contain a covenant on the part of the plaintiff to build all the cattle guards and pens that may be wanted to accommodate the shipping of the stock &c. from the plaintiff’s land adjoining the land of the defendant. In the deed the plaintiff grants the right of ingress and egress to and from the land conveyed, over and across the land of the plaintiff, to the public highway northwardly, in such place or places as may be convenient or necessary to load or unload cattle &c. from said highway upon or off of the cars on the rail road track of the defendant, built on the land conveyed. The
The defendant does not agree to do any thing; nor can any covenant on its part be implied, by any fair construction of the instrument. The claim is that the defendant was to bring all its cattle business to the plaintiff. All the covenants on the part of the plaintiff, and the grant, are entirely consistent with the right on the part of the defendant to make the same arrangements with other persons, or to establish cattle yards and pens of its own. Besides, there can be no implied covenants in a conveyance of real estate. (1 R. S. 738, § 140.)
The defendant’s counsel also makes the point, that if the agreement was a mere personal contract, being oral, it was void, because from its nature and terms it was not to be performed within one year. In other words, it was to continue in operation during more than one year, viz. during the existence of the corporation. I think this point is well taken. The chancellor so held in Pitkin v. The Long Island Rail Road Co., (supra.) By the statute an oral agreement is void “ that by its terms is not to be performed within one year from the making thereof,” The argument of the plaintiff’s counsel is, that it was not provided by the terms of the agreement that it should not be performed within one year, and that therefore the agreement does not come within the statute, and he cites several cases; McLees v. Hale, (10 Wend, 426,) in which a large number of cases are collected; also Plimpton v. Curtiss, (15 Wend. 336;) Lyon v. King, (11 Metc. 411;) Peters v. Westborough, 19 Pick. 364.)
■ It will be seen by consulting these cases, that the contract was of such a nature that it might be performed within the' year, or it might come to an end and cease to be operative. Some of the contracts related to supporting a person for a certain number of years, or until the person should attain a cer- ■
Treating the agreement as personal and executory, it was a permanent arrangement, and it was contemplated it should continue during the existence of the corporation. The plaintiff’s covenant to "construct and maintain yards and pens &c. was perpetual, and by the agreement the defendant was to take its cattle business to him. True no time was specified, but no reasonable construction can be given to it other than that it was to continue permanently, as long as the corporation existed. It is clear that what the defendant undertook to do, could not be all performed in one year. The learned judge held, in this case, that the contract was continuous, and that the plaintiff could only recover for the damages sustained up to the time of commencing the action. It seems to me, also, that the contingency applicable tú the life of natural persons, ought not to be applied to this case. To bring such contingency into the case and make it available in avoiding the statute, we must suppose that the corporation might be entirely dissolved within a year, leaving no successor, as receiver or otherwise) upon whom the liabilities of the corporation for its contracts might devolve. We cannot with any reason resort to such a contingency. If the corporatioh should become insolvent, and proceedings to dissolve should be instituted, the law has made ample provisions for its liabilities under its contracts. .
Chancellor Walworth, in Pitkin v. The Long Island Rail Road Co. did not hesitate to declare the executory agreement in that case, as a permanent arrangement, void, because, in
It is not necessary, probably, to say" -that a parol agreement which is not to be wholly performed within' the year is' void. This is so. (Broadwell v. Getman, 2 Denio, 87.)
In my opinion the two positions of the defendant, thus noticed, are fatal to the plaintiff's right to recover "damages in this action, and the plaintiff should have been nonsuited.
The judgment must be reversed.
Greene, Marvin, Davis and Grover, Justices.]