32 N.J.L. 105 | N.J. | 1866
Lead Opinion
The opinion of the court was delivered by
The first question to be considered is, whether the suit was brought within the time required by law. The executors, on the first day of June, 1858, obtained an order from the Orphans Court for the creditors to bring in their claims within nine months. The plaintiff’s claim was'presented within the time, but the executors, on the second day of April, A. D. 1859, gave him a notice in writing, under the second section of the “ act for the relief of legatees and next of kin in the recovery of legacies and distributive shares,” approved February 28th, 1849, Nix. Dig. 281,
Such also is the case of Seaver v. Lincoln, 20 Pick. 267.
None of these reach the case before ns. The cause of action was not depending upon the answer for which the
And in Massachusetts the general doctrine is held that the day of the date of the writ is the commencement of the action, and particularly so where the statute of limitations is in question, unless it should appear that the date was untrue. Gardner v. Webber, 17 Pickering 407; Bunker v. Shed, 8 Metcalf 151.
The writ in this case was clearly issued on the twenty-fifth day of June, 1859, before the three months had expired, in good faith, to be prosecuted, and that purpose was never abandoned, although the service was delayed to hear from the executors or their attorney.
The suit was commenced- when the writ was issued — the date is prima facie evidence that it was then issued, and there are no facts to contradict it, or to show that the attorney of the plaintiff intended otherwise than that it should be an actual suit for the claim. Any suit is liable to be defeated by arbitration or settlement, and efforts of a party to these ends are not to be used to his disadvantage, where the time within which a service is to be made has not expired. The court did right in refusing a non-suit upon this ground.
Although this testimony is not as distinct as the testimony of Jack, and the daughter, Mary, yet it sufficiently shows, if believed, that Van Dyke was not working at home as an unemancipated child, trusting to the generosity of his father alone,, but that he was working as a servant, under the promise of compensation. Van Dyke talked of going away ; the father could not spare him; he said he would satisfy him in some way for his labor; that he should have the farm at his death,,
The character of the contract will next have to be inquired into, under the second exception, which is, “ that it was not necessary that the contract in this case should have been in writing: and that it has the same legal effect as if it were in writing, if the jury believed the witnesses.” Jack swears, “when Van Dyke came of age, there was a conversation between him and his father. He said to his father, I want to go away; father said, what do you want to go away for? Van Dyke said, I want to go away to do for myself; he said, all the rest of them are doing for themselves, and I want to do for myself, too; the old man then made the reply, I can’t spare you; you’re the only boy who’ll work; I can’t spare you; I have a large farm; I am getting old; as long as I live, I’ll keep the loaf under my own arm; when I die you shall be well paid. Van Dyke stayed ; he went to work just the same as if it was his own; I suppose I thought
If the testator turned the plaintiff away, so that he could not perform that contract, then the plaintiff could maintain his action for his labor already performed, and upon the common counts. Story on Contracts, § 972; 1 Parsons on Contracts, 527, note V., and cases there cited.
And even if such' a contract was void by the statute of frauds, if the testator was in fault by turning the plaintiff away, the suit could bo brought for the services rendered,
And some cases go so far as to allow the plaintiff to recover for personal serviees, when there is only a part performance of a contract, not to be performed within a year, and he himself has repudiated it. Brown on Frauds, § 122.
Upon this point it is not necessary now to express any opinion. But if the contract was, that Van Dyke should serve his father while he lived, and at his death be paid by a devise of the farm, which, I think, is the true construction of the evidence, then, so far as this suit is concerned, it has as much legal effect orally as if in writing. Such a contract is undoubtedly void by the statute of frauds, or rather, an action could not be brought upon it if not in writing, yet it would have been a good defence to any action Van Dyke might have brought for his labor, before it was repudiated by the father. The testator could have set up that these services were performed, to be compensated by the devise; and it would have prevented a recovery by the plaintiff. Brown on Frauds, § 122, and cases in note.
But if the contract was repudiated by the testator, and he refused or failed to execute it, then the jdaintiff, upon that ground, would be entitled to recover for the worth of his services. 4 Dutcher 216 ; Rutan v. Hinchman, 1 Vroom 255 ; Brown on Frauds, § 122; Lockwood v. Barnes, 2 Hill 131; Canada v. Canada, 6 Cushing 15.
Supposing that the father turned the plaintiff away, as must have been the case for the plaintiff to have recovered under the charge, and the testator, by his will, having entirely cut the plaintiff off from any of his estate, the plaintiff would have a right of action for his work performed upon the faith of the contract, up to the time he was obliged to quit. So far, then, as this suit was concerned, the unwritten contract was good enough, and there was no error in the charge in this exception.
The third exception is to this language of the charge: il Upon this subject, Jack says, the old gentleman told the plaintiff to go away, and he went away. If this is
The fourth exception is to the charge, “that if you believe the father did not tell the plaintiff to go, then tho plaintiff cannot recover, and you need go no further with the case; but if you believe the father did tell the plaintiff to go, then the plaintiff was not to blame for going.” The reason alleged for this exception is, “ that if the father had told the plaintiff to go, it was a question for the jury whether he had not justifiable ground to discharge him.” This charge must be taken in connection with that in the third exception, in which the question of just cause was left to the jury; and a further answer to it is, that there is no evidence in the case of any justifiable cause of discharge to leave to the jury.
The fifth exception is, to what is alleged to be an erroneous statement by the judge of one of the grounds assumed in the defence. There is nothing to show that the court was wrong in what was stated.
The sixth exception is, that the defendants requested the court to charge the jury, that if the jury believed that an agreement was made between the father and son, by which the son was to be paid for his labor by a devise, that such agreement was void by the statute of frauds, and being thus void, the right of action to recover the value of the services rendered began as soon as the labor was performed, and
The seventh exception is, that the court declined to charge “ that if the jury should' believe that any contract was originally made between the father and the son, yet, if they believed that a new agreement was entered into between the parties in the spring of 1838, by which the plaintiff ceased to work for his father and worked for himself, that this new agreement rescinded the former one, as being inconsistent with it, without reference to the question of payment, and that the statute of limitations begins to run from the time of such recession.” I have examined the evidence both of the defendants and plaintiff carefully, and cannot find that ,there is any proof to warrant the court in making this charge. The mere fact, if such was the case, that the father permitted Van Dyke to work for himself awhile, in connection with Abraham, upon' the farm, is not in itself inconsistent with the contract claimed by the plaintiff. The father may have been willing for Van Dyke to have some of the profits, and yet to leave the contract still unimpaired by it. The evidence would not have warranted the jury in finding that there was any agreement by which the contract had been rescinded. The father may have been willing to dispense with some of the time of his son, and allow it to him, as well as part of the profits of the land, and yet this would not be inconsistent with the previous arrangement. The jury could regard these facts, if such existed, in fixing the time of service and amount of compensation, but these facts alone could not be considered as rescinding the former agreement.
The last exception is, that the judge charged that interest was to be calculated from the end of each, year’s service to the day of the trial. This whole claim rests upon the common counts for the value of labor performed. The suit is not upon a special agreement performed, but upon the ground that the contract has been repudiated by the testator, and his estate must, therefore, pay for the benefits re
All of the questions raised upon the motion of non-suit, not particularly referred to, are substantially disposed of in what I have said upon the exceptions to the charge. I find no error, and the judgment must be affirmed.
Judgment affirmed.
Haines, J., concurred.
Rev., p. 764.
Dissenting Opinion
(dissenting). Upon the trial of this cause, the court was asked to non-suit the plaintiff, for the reason that he did not commence his suit within three months from the time of being served with notice that his claim was disputed, as required by the second section of the “ act for the relief of legatees and next of kin, in the recovery of legacies and distributive shares,” approved February 28th, 1849, (Nix. Dig. 281.)
For the plaintiff, it is insisted that his suit was brought on the 25th of June, when the attorney says he issued the summons, by sealing it, properly drawn, and dated of that day, and leaving it on his table, which was in due time; while for the defendants, it is insisted that the suit was not brought until the writ was sent to the sheriff, which was some two months after the expiration of three months from the notice.
It appears by the case of Foster v. Bonner, Cowp. 454,
In the case before us, the summons was not issued out of the clerk’s office, but, in pursuance of the convenient practice in this state, the attorney, by permission of the clerk, signed his name, and affixed the seal, in his own office. Having-done this, he left it on his table, where it remained until handed to the sheriff, about five months after the giving of the notice. Had it been actually put in motion to be served, I should have no difficulty in holding that the suit was thereby commenced. But no case in this state, or elsewhere, has gone so far as to treat the mere drawing up, signing, and sealing of a writ in the attorney’s office, as of itself the bringing of a suit, although the attorney himself so intended. In the case of Whitaker v. Turnbull, the writ was not actually sent to the sheriff to be served, but that was done with it, as the Chief Justice remarks, “which was more civil to the defendant, and more effectually apprised him that a suit had been commenced. The writ and the evidence of the plaintiff’s demand were both shown to him, and he was distinctly informed of the plaintiff’s intention to proceed in the action. In fact the writ was on its way to
Nothing of the kind was done in this case. No use was made of the writ. It was merely prepared for use; was never shown to the defendants or their attorney; they were not informed that it had been sealed, nor was it withheld at their request. There were several conversations about an arbitration; but it is not alleged that the defendants or their attorney ever agreed to one, or that they induced the plaintiff’s attorney to delay the writ. His mistake was, in supposing that what he did was an actual bringing of a suit, within the meaning of the statute. I cannot so consider it. So to hold would be, in my opinion, to introduce a highly dangerous practice, sanctioned by no precedent, and by no sound principle.
The first section of the act of 1855 (Nix. Dig. 664)
It has been insisted for the plaintiff, that the plea by which this objection to the suit was made, is so defective as to be bad in substance, so that the court was justified in rejecting it. No such ground as this appears to have been taken at the trial, and if it had been, I think it is not tenable. The plea sets forth that on a day named, an order was made by the Orphans Court of the county of Somerset, according to the statute, directing creditors to bring in their claims within nine months, and that the plaintiff presented to one of the defendants, the acting executor, the claim for which the action is brought, and that the executor disputed the same, and thereupon, on the second day of April, 1859, gave notice in writing to the plaintiff that said claim was ■disputed, and that said suit was not commenced within three
If the plea may be considered technically defective, in not showing the jurisdiction of the Orphans Court of the eounty of Somerset, to make the orders set forth, or in the absence of any other formality, it might have been amended at the trial. But the replication, by denying and putting in issue-only the fact that the suit was not commenced in time, admitted all the other allegations of the plea, and by these it appears, not only that the Orphans Court of the county of Somerset made the orders stated, but that both parties acted under them. The plea is sufficiently intelligible, and good in substance, and it plainly appearing that the action was, in fact, commenced too late, I think the Circuit Court erred in, refusing to non-suit the plaintiff, and that the judgment must be reversed.
Cited in James v. Van Horn, 10 Vroom 360; Prickett v. Prickett's Administrators, 5 C. E. Gr. 480; Gardner’s Administrators v. Schooley, 10 C. E. Gr. 154.
Rev., 764.
Rev., p. 855, § 43.