Parks v. Francis's Administrator

| Vt. | Jan 15, 1878

The opinion of the court was delivered by

Rovoe, J.

The verbal promise of Nathan Francis that is sought to be enforced was, that in consideration that the infant son of Martin Parks, father of the plaintiff, should be named Nathan Francis Parks, he, Nathan Francis, would thereafter deposit in the Rutland Savings Bank for him (the plaintiff), one hundred dollars in four annual installments of twenty-five dollars each, one installment to be deposited each year after the first until all were deposited. The deposits for the first two years were made according to the promise, and the question is, whether the promise to make the two last deposits can be enforced.

The defendant claims that the promise, as far as it remains executory, comes within that section of the Statute of Frauds which provides that no suit in law or equity shall be brought or maintained upon any agreement that is not to be performed within one year from the making thereof, unless some memorandum of the agreement shall be in writing, and signed by the party to be charged.

In Foote & Stone v. Emerson, 10 Vt. 338" court="Vt." date_filed="1838-02-15" href="https://app.midpage.ai/document/foote--stone-v-emerson-6572052?utm_source=webapp" opinion_id="6572052">10 Vt. 338, the verbal contract proved was, to pay $150 per year for three years, in goods as the defendant might want them, and there had been part performance by the payment of $128.58 in goods during the first year. The court held that that portion of the contract that provided for the payment of the goods in the two last years, came within the statute and could not be enforced; and that where, by the terms of a contract, it is to be performed in part within one year and in part thereafter, the whole is void by force of the statute. And in Hinckley v. Southgate, 11 Vt. 128, the court say that performed means completed, and that there must be complete and full performance of the contract. The rule of construction given to the statute in these two cases has ever since been regarded as the settled law. While it is true that if the time of performance is by the contract left in doubt, or depends upon a contingency that may reasonably be expected to happen within the year, the contract is not required to be in writing, it is equally clear that when it is a part of the contract that it is not to be performed within the year, it is required to bo in writing, to exempt it from the operation of the statute.

The facts found by the County Court show, conclusively, that the promise upon which the right of action is predicated was not to be performed within one year from the time it was made; and hence, as far as it is unexecuted, it cannot be enforced.

As this view is conclusive as to the right of recovery, there is no necessity for passing upon the other questions that are presented by the exceptions.

The judgment of the County Court is reversed; and judgment for the defendant for his costs, to be certified back to the Probate Court.