Doyle v. Dixon, 97 Mass. 208

Doyle v. Dixon

97 Mass. 208 | Mass. | 1867

Gray, J.

It is well settled that an oral agreement which according to the expression and contemplation of the parties may or may not be fully performed within a year is not within that clause of the statute of frauds, which requires any “ agreement not to be performed within one year from the making thereof” to be in writing in order to maintain an action. An agreement therefore which will be completely performed according to its terms and intention if either party should die within the year is not within the statute. Thus in Peters v. Westborough, 19 Pick. 364, it was held that an agreement to support a child until a *212certain age at which the child would not arrive for several years was not within the statute, because it depended upon the contingency of the child’s life, and, if the child should die within one year, would be fully performed. On the other hand, if the agreement cannot be completely performed within a year, the fact that it may be terminated, or further performance excused or rendered impossible, by the death of the promisee or of another person within a year, is not sufficient to take it out of the statute. It was therefore held in Hill v. Hooper, 1 Gray, 131, that an agreement to employ a boy for five years and to pay his father certain sums at stated periods during that time was within the statute; for although by the death of the boy the services which were the consideration of the promise would cease, and the promisé therefore be determined, it would certainly not be completely performed. So if ‘the death of the promisor within the year would merely prevent full performance of the agreement, it is within the statute ; but if his death would leave the agreement completely performed and its purpose fully carried out, it is not. It has accordingly been repeatedly held by this court that an agreement not hereafter to carry on a certain business at a particular place was not within the statute, because, being only a personal engagement to forbear doing certain acts, not stipulating for anything beyond the promisor’s life, and ¡imposing no duties upon his legal representatives, it would be fully performed if he died within the year. Lyon v. King, 11 Met. 411. Worthy v. Jones, 11 Gray, 168. An agreement not to engage in a certain kind of business at a particular place for a specified number of years is within the same principle; for whether a man agrees not to do a thing for his life, or never to do it, or only not to do it for a certain number of years, it is in either form an agreement by which he does not promise that anything shall be done after his death, and the performance of which is therefore completed with his life. An agreement to do a thing for a certain time may perhaps bind the promisor’s representatives, and at any rate is not performed if he dies within that time. But a mere agreement that he will himself refrain from doing a certain thing is fully performed if he keeps it so *213long as he is capable of doing or refraining. The agreement of the defendant not to go into business again at Chicopee for five years was therefore not within the statute of frauds.

The agreement of the plaintiff to settle and adjust all matters between the parties, and to sign the lease, on the 21st of November, ten days before the time, when he was bound by the written contract to do so, was a legal consideration for the defendant’s agreement. Any act done by the promisee at the request of the promisor, however trifling the loss to himself or the benefit to the promisor, is a sufficient consideration for a promise made without fraud, and with full knowledge of all the circumstances. Burr v. Wilcox, 13 Allen, 273, and cases cited.

The defendant has no ground of exception to the action of the superior court upon the motion for a new trial. Such a motion, so far as it depends upon the weight of evidence or other matter of fact, is exclusively addressed to the discretion of the presiding judge. When the damages awarded by the jury appear to the judge to be excessive, he may either grant a new trial absolutely, or give the plaintiff the option to remit the excess, or a portion thereof, and order the verdict to stand for the residue. Lambert v. Craig, 12 Pick. 199. Hurry v. Watson, 4 T. R. 659 note. Blunt v. Little, 3 Mason, 107. The judge in this case having adopted the latter course, and ordered the verdict to stand for the sum of four hundred dollars, the only question of law arising thereon is whether the law would warrant a verdict for this amount. The injury to the plaintiff by diverting his trade was not capable of exact proof or definite computation, but depended very much on general estimate, which was peculiarly within the province of the jury. Marsh v. Billings, 7 Cush. 333. Earle v. Sawyer, 4 Mason, 14. Stephens v. Felt, 2 Blatchf. C. C. 37, 39. It is impossible to say that upon the evidence at the trial, and such inferences and estimates as the jury might rightfully make, a verdict for four hundred dollars was not warranted by law. Moreover, any questions of law involved in the motion to set aside the verdict were open to the defendant at the trial, and no nstruction in point of law having been then requested as to the limit of the damages which the jury would be warranted upon *214the evidence in finding, no exception lies to the rulings upon such questions on the motion for a new trial. Kidney v. Richards, 10 Allen, 419. Exceptions overruled.