Frear v. Hardenbergh

5 Johns. 272 | N.Y. Sup. Ct. | 1810

Spencer, J.

delivered the opinion of the court. The material objections to the maintenance of the action, urged on the argument, are, that the contract proved is within the statute of frauds, and that it is a nudum pactum.

The 4th clause of the 11th section of our statute of frauds, corresponding with the 4th clause of the 4th section of the statute of 29 Car. II. c. 3. it is contended, renders the promise in this case nugatory. The words are, “ that no action shall be brought, whereby to charge' any person, upon any- contract, or Sale of lands, tenements, or hereditaments, or any interest in, or concerning them,” See. One part of the contract proved, is certainly within the terms of this clause of the statute; I refer to that part of the agreement, by which the defend-3 ant undertook to sell the land to the plaintiff, as wild land, and so far the promise is rendered nugatory by the statute. The other part of the promise does not, in my apprehension, come within the statute ; it was not a contract, or sale of lands, tenements, or hereditaments, or any interest in, or concerning them; but related to the labour only, which had been bestowed on the land, under the denomination of improvements. Was it ever supposed that a parol contract, to pay for work to be done on land, or for what had been done, if at the instance and request of the promiser, was a void undertaking as under the statute. The contract in such case does not go to take from the promiser the land, or any,interest in, or concerning it. ; The statute could have in view to avoid such agreements in relation to lands, as rested in parol, only where some interest was to be acquired, in the land itself, and not such as were collateral, and by which no kind of interest was tobe gained, by the agreement, in the land. The defendant’s counsel relied much on the case of Crosby v. Wadsworth, (6 East, 609.) If that case be admitted to be law, with respect to which there is doubt, (1 Ld,. Raym. 182.) still that case differs widely from the present. There the agreement was by parol for the purchase of a standing crop of mowing grass, then growing, for 20 guineas; neither earnest was paid, nor was possession given to the vendee, and before any of the grass was cut, the vendor told the vendee, he should not have it. Lord Ellenborough and the court, considered the agreement to be a contract, or sale of an interest in, or, at least, an interest concerning lands. The difference between the cases is manifest; in the present case, the agreement so far as relates to compensation tor •the labour in making the improvements, does not affect any interest in the land, or concerning it. The case of Waddington v. Bristow also relied on by the defendant, is still less applicable to the present case. That case turned on the exposition of the stamp act, on an agreement for the sale of hops ; the effect of the statute of frauds is not mentioned in the case. I conclude, therefore, this branch of the case, by saying, that the statute of frauds does not touch this agreement.

Next, is the promise a nudum pactum, for the want of a consideration ? It undoubtedly is so, unless there existed such an equitable or moral duty on the part of the defendant, to pay for the improvements made by the plaintiff, as will uphold the promise ; for it is past and executed. There is no evidence to show that it was executed, either at the express or implied request of the defendant. (1 Fonbl. 336. and the cases there cited.) A consideration is where there is a benefit to the party promising, or a loss to the person to whom the promise is made. The present case is without either of those ingredients, for it does not appear, nor is there the least reason to believe, that the plaintiff did a single act, or forbore to do any act, in consequence of the defendant’s promise ; he never admitted that the defendant had any right to the land, but withstood his claim to the utmost. The defendant, then, received no benefit from the promise, and the plaintiff did nothing in consequence of it. As it stands in the case, there was no mutuality; the defendant was to pay the plaintiff for his improvements, but the plaintiff was to be at liberty to controvert his title, and to put him to the charge of evincing it in a court of justice. Will the moral obligation assist the plaintiff’s case ? There may be cases in which the law will not afford a remedy, when a promise intervening will give a right of action -, I shall not undertake tp discrimínate between such as do, and such as do not, afford a sufficient consideration, because, in the present case, I do not think there existed the least moral obligation on the defendant, to pay for the improvements made by the plaintiff. The plaintiff knowingly entered on land not his own, without any authority from the owner, and without the semblance of right. The improvements made by him were at his peril; to consider these services meritorious would be to encourage depredations on private property. I am therefore of opinion that the motion to set aside the nonsuit ought to be denied.

Judgment of nonsuit.

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