Plimpton v. Curtiss

15 Wend. 336 | N.Y. Sup. Ct. | 1836

By the Court,

Savage, Ch. J.

It seems to be conceded by the defendant, that this plea would have been bad upon special demurrer, as amounting only to the general issue, but he insists that objection cannot be raised upon a general demurrer.

The true question upon this record is, whether the agreement set forth in the declaration is according to its fair construction not to be performed within a year. The language of the revised statutes, 2 R. S. 135, <§> 2, is as follows: “In the following cases every agreement shall be void unless such agreement, or some note or memorandum thereof, expressing the consideration, be in writing, and subscribed by the party to be charged therewith : 1. Every agreement that by its terms is not to be performed within one year from the making thereof.” The agreement set forth in the declaration in this case is not for the building of a house after the expiration of one year, but that it shall be performed at the farthest within fifteen months. There is nothing in the agreement prohibiting the defendant from completing the contract within six months or a shorter period. Suppose he had done so, and sued the plaintiff for compensation for his labor and materials found, would it have befen permitted to the plaintiff to have said that the contract was not to be performed within a year, and therefore it was not obligatory upon him? Most clearly not. And if obligatory upon one party, it is equally so on the other. The defendant might have performed the contract within a year, and therefore it is riot within the statute. 10 Wendfill 426, and cases there cited.

It is argued by the defendant’s counsel, that by demurring, the plaintiff admitted the facts set up in the plea. That may be conceded in this case, and still the demurrer be well taken.

The defendant does not plead any new fact, but merely draws an inference of law from the facts stated in the declaration ; so that the question still returns, what is the legal effect of the contract as stated in the declaration ? On that question there can be no doubt.

Judgment for plaintiff on deihiirrer; leave to amend on payment of costs.