4 Md. 476 | Md. | 1853
delivered the opinion of this court.
With a view to simplification, we will first dispose of the last exception of the plaintiff.
• The plaintiff offered to read to the jury the proof taken under a commission. The defendant objected to the “admissibility of said commission,” because of irregularities apparent on its face, and the court refused to permit the testi
We think the court properly rejected the evidence. The act of 1825, ch. 117, confines this court to the consideration of the point decided by the court below; it does not to the reason given for the decision. If the testimony “be inadmissible on any ground it should be rejected.” Sothoron vs. Weems, 3 Gill and Johns., 435. Parker vs. Sedwick, 4 Gill, 318. And therefore, although the defendant only objected to the admissibility of the commission, there were good reasons why the court should cover by its decision, the offer of the plaintiff, which was, to read the testimony taken under it. If the commission did not belong to the case on trial, any testimony taken under it could not properly be read to the jury. There was no evidence given by the clerk of the court, nor by any one else, of the non-existence on the docket of a case against the executors of John Turner. For aught the court could know, there may have been such a case, there being nothing in the law, nor in the ordinary transactions of men, to forbid the same parties from being executors of more than one deceased person. We are, however, of opinion, if it had been shown by proof to the court there was no such case, that there was sufficient in the record to have authorized it to have treated the words “John Turner” as a clerical misprison.
This is an action of indebitatus assumpsit, and has been brought by the plaintiff, to recover from the defendants a sum of money claimed to be due by their testator, for the support and education of two of his grandchildren, by the plaintiff their step-father.
The plaintiff offered evidence that the defendant’s testator had agreed, prior to the marriage of his daughter with the plaintiff, that he would pay to the plaintiff whatever expense he might be put to in the support, maintenance and education of his granddaughter; that in the year 1841, on the day of the marriage of the plaintiff with the daughter of the testator,
On this state of facts several prayers were presented to the court, of which however, only the fifth and sixth of the defendants, and the first and second of the plaintiff, are before us on this appeal.
The fifth prayer is confined to the claim arising from the education, &c., of Ann W. Iglehart; the sixth relates to the board and clothing of her brother Richard. We think both were improperly granted by the court below.
The first of these two prayers of the defendants, in substance, instructs the jury, if they shall find the claim of the plaintiff is founded on an agreement between the parties, that the plaintiff was to educate and support the girl and to spare no expense, and that he was to be repaid by the testator of the defendants, and shall find that the agreement was not in writing, and was not to be performed or completed by either party, according to the understanding of the parties thereto,
We understand the promise mentioned in the prayer, to be the one embraced in the original agreement, and were it not for the subject matter of the agreement we would hold the prayer to be correct, for we are of opinion there was sufficient in the evidence to justify the jury in inferring, it was the understanding and agreement of the parties, that it was not to be completely performed on either side, within the space of one year; and this circumstance, were it not for the nature of the agreement, would bring it within the express language of the fourth section of the statute of frauds, which is, “that no action shall be brought upon any agreement, that is not to be performed within the space of one year from the making thereof; unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing, signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.”
This clause in the 29th of Charles, 2, ch. 3, sec. 4, at no great distance of time after its passage, underwent the consideration of all the judges, in the ease of Peter vs. Compton, Skinner, 353. In that case the action was upon an agreement, in which, the defendant promised for one guinea to give the plaintiff so many at the day of his marriage. The marriage did not happen within the year, and the question was, whether such an agreement was within the statute. It was held by a majority of the judges that it was not, and, that where the agreement is to be performed upon a contingent, and it does not appear within the agreement that it is to be performed after the year, there a writing is unnecessary, for the reason, the contingency might happen within the year. The case of Donellan vs. Read, 3 Barn, and Adol., 899, went farther, and decided, that where all is to be done by one of the parties, is to be done within a year, the statute does not apply. In that case the defendant was tenant to the plaintiff for twenty years, and, in consideration that the plaintiff
' These principles have been fully recognized by innumerable decisions both in England and this country. And in pursuance of the principles which they sustain, especially that of the case of Peter vs. Compton, it has been held both in England and in these States, the statute will not apply where the contract can, by any possibility, be fulfilled or completed in the' space of a year, although the parties may have intended its operation should extend through a much longer period. A contract to serve another for two years, would be within the statute; but a contract to serve for an indefinite period, subject to’ be put an end to at any time upon reasonable 'notice, is not within the statute, though it may extend beyond the year. Souch vs. Strawbridge, 2 Manning, Granger and Scott, 815. Shute vs; Dorr, 5 Wendell, 204. Drummond vs. Burrell, 13 Wendell, 307. Where a party contracts by parol to work for the term of two years, for which he is to receive a given sum, and quits at the end of six months, the contract is within the statute of frauds, and an action cannot be maintained for its non-performance. Ibid. But if the contract be for an indefinite time, and the services under it are to be compensated for in payments by the week or month, the statute does not apply. Moore vs. Fox, 10 Johns., 244. In that case the defendant had promised to pay the plaintiff two dol
Although there is nothing in the evidence of the case now before us, showing when the testator of the defendants was to pay the plaintiff for his services and advances, it is but fair to presume, this obligation on the grandfather was not complete on the purchase of every garment, bonnet, or pair of shoes, so as to give the plaintiff a right of action eo instanti against him. The reasonable interpretation of the agreement is, that the plaintiff was to bring up the child, clothe, board and educate her, and to be compensated for so doing by the grandfather, not immediately on the accruing of every item of expense, but when the contract was completely performed by the plaintiff, so far as the education of the child was concerned ; and this seems to have been the continuing understanding of the parties for no payments were made by the grandparent. But, be this as it may, it is a principle of law that where the contract is silent as to the time of payment, and “the payment is to be made in consideration of the services, those services are a condition precedent to the payment, and must be performed in full, before payment can be enforced.” Drummond vs. Burrel, 13 Wendall, 308.
According to these principles the agreement in this case would undoubtedly fall within the meaning of the fourth section of the statute of frauds, were it not for the subject matter on which it was to operate. It was to educate and board the girl. Her education and support, necessarily, were limited to her life, and the duration of that was uncertain; it might or might not extend beyond a year; in other words, her death ¡ was a contingency which might occur before the lapse of a jmar, and this circumstance rendered the agreement one which might have been fulfilled in less time than a year. But, it was argued by the counsel for the appellees, that this resting the validity of the agreement on the possibility of death occurring within the year, was a subtlety and refinement not
These views dispose of the fifth prayer of the defendants, and also of their sixth. The latter is erroneous for reasons in addition to those which we have urged to the other. It is not confined to the promise made at the time the contract was entered into, but extends to the promise to pay which was made by the defendants’ testator shortly before his death.
We have shown that the agreement was not within the statute; but had it been, the sixth prayer of defendants ought not to have been granted for their testator would have been responsible on the common counts, the contract having been executed. Where the contract has been fully executed, and nothing remains to be done but the payment of the money, it is not necessary to declare upon it specifically Ridgeley vs. Crandell and wife, decided at this term, and the authorities there collected. Ante, 435. Where there is a contract for the performance of services, or for the sale and delivery of goods which is within the statute, if the services be rendered or the goods delivered and be accepted, the party doing the work or delivering the goods may recover on a quantum meruit, and he may give in evidence the agreement under which the labor was performed or the goods delivered as a part of the res gestee. The law will not allow a man to accept a delivery of goods without making him liable to pay for them.
It must be observed that the original agreement in this case
We regard the moral obligation resting on the defendants’ testator, as a sufficient consideration to support his promise tp pay. To use the language of Lord Mansfield, in the case of Hawkes and wife vs. Saunders, Cowper, 289, “where a man is under a legal or equitable obligation to pay, the law implies a promise, though none was ever actually made; a fortiori, a legal or equitable duty is a sufficient consideration for an actual promise. Where a man is under a moral obligation, which no court of law or equity can enforce, and promises, the honesty and rectitude of the thing is a consideration.” This language of Lord Mansfield, however, must be understood as applying only to cases of promise where there was a pre-existing obligation, either legal or equitable, to pay, and not as éxtending to that class of cases which arise out of the moral affections alone. So it has been held, where a son, who was of full age and had ceased to be a member of his father’s family, was suddenly taken sick among strangers, and, being poor and in distress, was relieved by the plaintiff, and after-wards the father wrote to the plaintiff promising to pay him the expenses incurred, that the father was 'not responsible on such promise. Mills vs. Wyman, 3 Pickering, 207. Had the father in that case originally agreed to pay for any assistance wbipjj might thereafter.be rendered to his son he would have
Notwithstanding these views, we think the court properly rejected the prayers of the plaintiff. They were defective in this, they assumed a fact which was to be found by the jury, to wit, the existence of the original contract. See Gaither vs. Martin, 3 Md. Rep., 160. Susquehanna, Rail Road Co., vs. Woodruff, 4 Md. Rep., 252.
Judgment reversed and procedendo awarded.