85 Va. 928 | Va. | 1889
delivered the opinion of the court.
This action was assumpsit upon a contract by the defendant to sell the plaintiff two hundred and fifty shares of the capital stock of the Richmond & Danville Railroad Company at the
The first error assigned here is as to the action of the court in refusing to give to the jury the instruction asked by him, which was as follows: “If the jury believe from the evidence that on or about the 11th day of March, 1886, the plaintiff and defendant entered into an agreement by which the defendant agreed to buy two hundred and fifty shares of Richmond & Danville railroad stock, and sell the same to the plaintiff at $96 per share, the plaintiff to take the same at the end of three years from the date of the agreement, but with the right to take it at any time prior to the expiration of the three years; and if they further believe that early in the month of July, 1886, the plaintiff, or his duly authorized agent, demanded delivery of the stock from the defendant, and tendered him pay for the same, and that the defendant refused to deliver the said stock, then the jury must find for the plaintiff an amount equal to the difference between the contract price and the market value of the stock at the time of the refusal to deliver the same,” and in giving to the jury in lieu thereof an instruction that the said
Our statute of frauds and perjuries corresponds to the English statute of 29 Oar. II, ch. 3, which an eminent writer of that realm designates as the most important and most beneficial piece of judicial legislation of which England can boast. Lord Campbell, 3 Camp. Lives, Ch. 330. Lord Nottingham, who is styled “the father of English equity,” claims to have introduced the hill in the House of Lords, while its original conception has long been popularly imputed to Lord Hale and Sir Leoline Jenkins. Ash v. Abdy, 3 Swanst. 664; Windham v. Chetwynd, 1 Burrows, 418. And the proper construction of the law has been considered and debated in a vast number of cases, so that, as is said by an eminent author of our own times, Mr. Minor (3 Minor’s Inst. 151), to ascertain the signification of its several clauses has cost an immense sum of money—a subsidy, it is customary to say, for every line. Wain v. Warlters, 5 East, 17. _ Our statute of parol agreements corresponds to the fourth section of 29 Car. II, ch. 3. By the seventh clause the agreements contemplated by the statute are such as on their face have their performance postponed beyond one year, and not such as may or may not chance to he performed within that period. In the case of Peter v. Compton, 5 W. & M. King’s Bench, 1 Smith’s Lead. Cas. *351, the question upon the trial in an action upon the case, upon an agreement in which the defendant promised for one guinea to give the plaintiff so many upon the day of his marriage, was if such agreement ought to he in writing, for
But it is insisted in this case by the defendant in error that while the plaintiff could call the stock within the year, by the terms of the agreement the defendant could not, and that upon the option of the plaintiff the agreement might be performed within the year, but this the defendant could not do, and that the agreement, so far as it was mutual, was beyond the year, and came under the statute. The accepted doctrine in England upon the decided cases seems to be that the words in the statute “ not to be performed” mean not to be performed “on either side”—that is, that an agreement does not come within the statute, provided that all that is to be done by one of the parties is to be done within a year; that is, that on that side the contract is executed. This was first hinted at in Bracegirdle v. Heald, 1 Barn. & Ald. 722, and then distinctly ruled in Donellan v. Read, 3 Barn. & Adol. 899; Littledale, J., saying as to the contract not being to he performed within a year: “We think that as the contract was entirely executed on one side within a year, and as it was the intention of the parties, founded on a reasonable expectation, that it should be so, the statute of frauds does not extend to such a case.” In that case there was no time fixed for the performance by one party, but he performed within the year ; the other party, by the terms of the agreement, was not to perform except at the expiration of several years; he to pay an additional annual rent for the remainder of the lease, of which sev
This ruling has been approved and followed in many American cases, though not uniformly so. Holbrook v. Armstrong, 1 Fair. 31; Rake v. Pope, 7 Ala. 161; Johnson v. Watson, 1 Kelly, 348. This doctrine is thus stated by Mr. Smith (Smith, Cont. 112): “When, however, all that is to he done by one party, as the consideration for what is to he done by the other, acutally is done by the one within a year, the statute does not prevent that party suing the other for the non-performance of his part of the contract. When one has had the full benefit of the contract the law will not permit the other to withhold the consideration,”—
We think the circuit court clearly erred in rejecting the plaintiff’s instruction as asked, and the judgment will, for that cause, be reversed, and the case remanded to the circuit court, with
Decree reversed.