47 Barb. 549 | N.Y. Sup. Ct. | 1867
The agreement, for a breach of which the action was brought, was made in the state of Pennsylvania, where it was to be performed, and where the subject matter of it was situated and it is not denied that its validity must be determined by the law of that state.
Assuming that the contract is void in consequence of not being in writing, it is so by reason of the statute of frauds of this state. By the common law it was a valid contract, and
The 426th section of the Code defines how the statutes and written laws, and also the unwritten or common law, of any other state or territory, or foreign government, may be proved. The former, by the printed copies of the volumes of such statutes, &c. properly identified to be.such, and the latter may be proved as facts by parol evidence ; and the section declares that the books of reports of adjudged cases in their courts may also be admitted as presumptive evidence of such "unwritten law.
The rule, as I have always understood it to exist in this state is, that where there is no evidence to thé contrary, it will be presumed that the common law is in force in each of the other states, except possibly the state of Louisana, and that no such presumption will prevail in regard to statute or written law. . If the common law has been abrogated, changed or modified by a statute of another state, it must be proved, either in the way provided by the acts of congress, (chap: 11,
The statute of frauds, as it now exists in this state, has undergone repeated changes since its first enactment, and if the presumption referred to is to prevail, it follows that each of the other states which had a statute of frauds has made the .same changes in its statutes. But there is reason to believe that neither the English statute of frauds (29th chap. 2, chap. 3,) nor any of its amendments were ever enacted in Pennsylvania, prior to the year 1809. In the year 1808, the legislature of that state' passed an act referring it to the Supreme Court to report what English statutes were in force there, and to recommend the adoption of such of those not in force as in their opinion ought to be enacted. By the report of the Supreme Court, made in pursuance of the act, it appears that the statute of frauds of England had never been in force in Pennsylvania ; and although the court recommended the passage of many English statutes not then in force, they omitted to recommend the statute of frauds. (Purdoris Dig. vol. 1, p. 32, § 2. 3 Binney’s Rep. 595.) We are without evidence of any statute of frauds in Pennsylvania, and if there is one, we have no means of knowing what are its provisions.
Whether the agreement in question was within the statute of frauds of this state presents an important question. The salé of the engine by the defendant to the plaintiffs was never absolute. It was coupled with a condition that the plaintiffs should take it upon trial, and if it did not answer their purpose, the defendant would take it back, and pay or allow the plaintiffs $1000 for it. There was, in fact, no sale of the engine, except what was contained in the previous written contract, which was connected with a condition that the plaintiffs should elect, by 12 o’clock at noon of the following Saturday, to take the etigine, with the other property mentioned, and if they did not so elect, they should forfeit
For the foregoing reasons, I think there should be a new trial, with costs to abide the event.
Ordered accordingly.
Welles, K Darwin Smith and Johnson, Justices.]