66 Ky. 297 | Ky. Ct. App. | 1867
delivered tiie opinion of ti-ie court:
Garnett leased Montague his farm for three years from January 1, 1861, until January 1, 1864, and, at the same time, verbally loaned him one hundred barrels of corn and three thousand three hundred and sixty pounds of pork, to be returned at the expiration of the lease. The corn and pork not being returned, Garnett sued, and recovered judgment for their value, from which Montague appealed.
It is insisted that this was a verbal contract, not to be performed within a year, and, therefore, no recovery can be had because of the statute against frauds and perjuries.
There is evidently a distinction between contracts executed in part or whole, and one wholly to be executed by . both parties, under said statute, as was said by this court in Roberts vs. Tennell, 3 Monroe, 347; and, as therein said, the statute does not declare such contracts void, but only that suit for their enforcement cannot be maintained.
Where a contract is wholly executory on both sides, as neither could bring a suit for its enforcement, the legal effect would be the same as though the contract had been declared void; but' this is not the effect of the statute where there has been an execution of the contract, in part or whole, by one party; for, in such cases, the law implies a contract to pay for the consideration received ; and neither the letter nor spirit of the statute prohibits a suit to recover on this implied obligation of the law.
When the law does not imply a promise to return the consideration, as for money loaned to be bet at cards, &c., but declares the contract void, no suit could be maintained, when the pleadings show the promise to return is verbal and not to be executed within a year, because the express promise would conflict with the statute against, frauds and perjuries, and there would be no implied promise by law to sustain the suit. But when the consideration, so far from being illegal and vicious, is valuable and virtuous, neither the statute nor public policy forbid a recovery upon the implied promise, in law, to return or pay. for it.
Note. — The foregoing opinion was delivered' February 15, 1867, but was misplaced, and, for this reason, was not published in a previous volume.