55 Neb. 403 | Neb. | 1898
Kendall, in bis amended petition against Garneau, alleged that December 11, 1890, the Patrick Land Oom-
It will be observed that the notes were not payable for more than one year after the conveyance to Garneau, and that that deed was not subscribed by the grantee. The question raised by the demurrer is whether such a transaction is within the first subdivision of section 8, chapter 32, Compiled Statutes, which provides: “In the following cases every agreement shall be void unless such agreement, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged therewith: First — Every agreement that by its terms is not to be performed within one year from the making thereof.” It is contended that the liability of the grantee under similar circumstances has been settled by repeated adjudications. An examination of the cases will disclose that the propositions so far decided have been that a third person for whose benefit a promise is made may sue thereon, although he be not a party to the consideration; and that such a promise is a principal undertaking, and so not within that provision of the statute of frauds which requires a writing in order to charge
Were we at liberty to base our construction upon what se.ems the-natural and ordinary meaning of the language employed, the solution ought not to be difficult. As stated by Lord Ellenborough in Boydell v. Drummond, 11 East [Eng.] 142, “performed” means completely performed. It means done, not begun or half done. The policy of the statute was to prevent the evidence of such contracts from resting in the uncertain memory of witnesses for so long a time. A half performance would not satisfy this object. But the language of the statute is not altogether certain, and we have, from another rule of construction, a guide to the intent of the legislature-. Our statute was first enacted in 1856. (Session Laws, ch. 33.) It was re-enacted in 1864. (Session Laws, p. 70.) From its closely following in the main the statute of Charles II, and from the changing of some words which had created difficulty in the construction of that statute, and the addition of certain sections rendering explicit matters which Avere left by the English statute in doubt, it is quite evident that it was carefully prepared, AAdth a vie-Av to the many decisions construing the original act and the earlier American acts founded thereon. If the Avords used had at the time received a settled construction, we must presume that the legislature adopted
When our statute Avas first enacted the doctrine of Donellan v. Read had been adopted in Maine (Holbrook v. Armstrong, 10 Me. 31), in Alabama (Rake v. Pope, 7 Ala.
In the district court there was a stipulation whereby the parties in effect agreed to rest, the plaintiff on his amended petition and the defendant on his demurrer, and in the event of reversal by this court that judgment should be entered for the plaintiff for an amount stipulated. Recently there has been filed here a transcript of proceedings in the United States circuit court for this district, whereby it appears that pending these proceedings the land has been sold under decree foreclosing the mortgages, and that part of the debt has been by the plaintiff so realized. We are asked by the plaintiff to enter judgment under the stipulation, giving credit for the amount shown to have been so realized. The defend
Reversed and remanded..