14 A. 857 | R.I. | 1888
The record in this case shows that Philip H. Durfee, the plaintiff's intestate, built a house for the defendant in 1874. An agreement, signed by said Durfee but not signed by the defendant, was put in evidence, from which it appeared that the price was to be $2,400; of which sum $500 was to be paid when the house was begun, $500 when it was finished, and the balance in five yearly payments, with interest, payable semi-annually. Payments having been made from time to time, *214 as shown by receipts and an account entered by said Durfee in a book in the possession of the defendant, the cost of the house being entered as $2,416.67, the plaintiff sues for the balance due on the contract, with interest. The defendant asked the court to charge the jury: "That, as the contract sued upon was not to be performed by both parties within one year from the making thereof, and was not signed by the defendant or by some one authorized by her to sign it, that all the provisions of the contract are void, and the plaintiff can recover only upon thequantum meruit counts the reasonable value of the services rendered and materials furnished." The presiding justice refused this request, and charged the jury: "That, if the house was built under the contract, if one has been proved, and accepted by the defendant, the plaintiff can recover the contract price; that, if there was a contract for building the house for a stipulated price, and the house was built according to contract, and all the stipulations on the part of Durfee were performed within a year, according to the intent of the contract, the mere fact that payment for the house was not, according to the agreement, to be completed within one year, would not relieve the defendant from liability to pay the agreed price, even if the agreement was not signed by the defendant or her agent." The defendant sought to show that it was not worth $2,400 to build the house.
We must assume that the jury found there was a contract to pay $2,400; and the question to be determined, therefore, is, whether the instruction was correct; that the statute of frauds does not extend to actions for payment upon contracts which are wholly executed on one side within a year.
In England this doctrine was first decisively laid down inDonellan v. Read, 3 B. Ad. 899, in 1832. In Souch v.Strawbridge, 2 C.B. 808, it was approved by Tindal, C.J., but the decision of the case did not turn upon that point. InCherry v. Heming, 4 Exch. Rep. 631, it was again sustained; again in Smith v. Neale, 2 C.B.N.S. 67; and in the recent case of Miles v. New Zealand Alford Estate Co. 54 L.J. Rep. Eq. 1035, North, J., p. 1040, citing Donellan v. Read andCherry v. Heming, says: "I think there is a great deal of force in the observation that what is required by the statute is, that the agreement should be performed, *215 and not that it should be partly performed, and that performance means performance by both parties. But that has been settled; and it has been decided that all that is required is performance by one party within the year, however many years may have to elapse before the agreement is performed by the other party."
In this country, however, there has been considerable conflict of opinion. In Alabama, Georgia, Maine, South Carolina, Maryland, Illinois, Ohio, Indiana, Arkansas, Missouri, and Wisconsin, the English rule has been followed. See Rake v.Pope,
In New Hampshire the decisions are conflicting; the earliest and latest sustaining the English rule. See Blanding v.Sargent,
The contrary doctrine has been held in Vermont, Massachusetts, and New York. See Pierce v. Estate of Paine,
In the former class of cases it is held that the statute does not extend to contracts which are wholly executed on one side, or which may be executed by one side within a year, but only to contracts which, as a whole, are not to be executed within a year. These cases construe the words, "not to be performed," to mean not to be performed on either side within a year. The other class of cases hold that performance by one party is not performance of the agreement, and that, in any view, the part of the contract sued upon comes within the statute, for which the part performed is only the consideration. As to the question which is involved in this case, viz., the payment for property delivered and accepted under a promise to pay, we think the weight of authority is in favor of the English rule. Mr. Browne, in his work on the Statute of Frauds, suggests a reason for the apparent contrariety of *216
the rule and the statute. He says, 4th ed., § 290: "It may well be doubted, indeed, whether this doctrine would ever have been accepted in England, if the question had not uniformly arisen on cases where the stipulation sought to be enforced related solely to the payment of the money consideration. In such cases it is a mere matter of form in bringing the action, the plaintiff's right to recover on the indebitatus assumpsit, which count is uniformly found to have been inserted in the declaration, being clear." In Pierce v. Estate of Paine,
It is also claimed by the defendant that there is no liability to pay interest except from the date of a demand for payment. The contract, as claimed by the plaintiff and found by the jury, was to pay the balance due in five yearly payments, with interest at eight per cent. semi-annually. The plaintiff claims interest only at the rate of six per cent. The time when the payments are due and the agreement to pay interest being definite, the charge for interest was properly allowed. It is said in Spencer v. Pierce,
Petition dismissed.
