Ellicott v. Turner

Le Grand, C. J., delivered the opinion of this court. With a view to simplification, we will first dispose of the last exception of the plaintiff. • The plaintiff offered to read to the jury the proof taken under a commission. The defendant objected to the “admissibility of said commission,” because of irregularities apparent on its face, and the court refused to permit the testi ⁴⁸⁵ many to be read to the jury. The commission, on its face, professed to have been issued in a case in which the executors of John Turner were defendants.

This action is against the executors of John Peterson. We think the court properly rejected the evidence. The act of 1825, ch. 117, confines this court to the consideration of the point decided by the court below; it does not to the reason given for the decision. If the testimony “be inadmissible on any ground it should be rejected.” Sothoron vs. Weems, 3 Gill and Johns., 435.

Parker vs. Sedwick, 4 Gill, 318 . And therefore, although the defendant only objected to the admissibility of the commission, there were good reasons why the court should cover by its decision, the offer of the plaintiff, which was, to read the testimony taken under it. If the commission did not belong to the case on trial, any testimony taken under it could not properly be read to the jury. There was no evidence given by the clerk of the court, nor by any one else, of the non-existence on the docket of a case against the executors of John Turner.

For aught the court could know, there may have been such a case, there being nothing in the law, nor in the ordinary transactions of men, to forbid the same parties from being executors of more than one deceased person. We are, however, of opinion, if it had been shown by proof to the court there was no such case, that there was sufficient in the record to have authorized it to have treated the words “John Turner” as a clerical misprison. This is an action of indebitatus assumpsit, and has been brought by the plaintiff, to recover from the defendants a sum of money claimed to be due by their testator, for the support and education of two of his grandchildren, by the plaintiff their step-father. The plaintiff offered evidence that the defendant’s testator had agreed, prior to the marriage of his daughter with the plaintiff, that he would pay to the plaintiff whatever expense he might be put to in the support, maintenance and education of his granddaughter; that in the year 1841, on the day of the marriage of the plaintiff with the daughter of the testator, ⁴⁸⁶ the latter took the plaintiff aside and told him that he wished him to take the girl, educate and support her in the best possible manner, and to spare no expense, and it should be repaid to him; that the girl was then about nine years of age.

He further proved that he did support, educate, clothe and maintain the said granddaughter, from November 1841, until the death of the testator in 1849. He also proved, that the deceased had frequently in his lifetime stated that he owed the plaintiff a large sum of money for said support, clothing and education of his granddaughter, and a short time before his death promised to pay it so soon as he could sell his crop of tobacco. The plaintiff also proved, that the other grandchild, Richard Iglehart, was taken in 1843, by him, and clothed and boarded for four years, under an agreement made with the grandfather to allow him per year, for the board of his grandson, the. sum of one hundred and twenty-five dollars. He proved in addition, that the testator, shortly before his death, stated to the witness, he owed the plaintiff for such board and clothing the sum of five hundred dollars, and sent word to the plaintiff by the witness that he would shortly pay him the amount.

On this state of facts several prayers were presented to the court, of which however, only the fifth and sixth of the defendants, and the first and second of the plaintiff, are before us on this appeal. The fifth prayer is confined to the claim arising from the education, &c., of Ann W. Iglehart; the sixth relates to the board and clothing of her brother Richard. We think both were improperly granted by the court below. The first of these two prayers of the defendants, in substance, instructs the jury, if they shall find the claim of the plaintiff is founded on an agreement between the parties, that the plaintiff was to educate and support the girl and to spare no expense, and that he was to be repaid by the testator of the defendants, and shall find that the agreement was not in writing, and was not to be performed or completed by either party, according to the understanding of the parties thereto, ⁴⁸⁷ within one year from the date of making said agreement, then the promise of the testator of defendants, was not such as to authorize a recovery on it.

We understand the promise mentioned in the prayer, to be the one embraced in the original agreement, and were it not for the subject matter of the agreement we would hold the prayer to be correct, for we are of opinion there was sufficient in the evidence to justify the jury in inferring, it was the understanding and agreement of the parties, that it was not to be completely performed on either side, within the space of one year; and this circumstance, were it not for the nature of the agreement, would bring it within the express language of the fourth section of the statute of frauds, which is, “that no action shall be brought upon any agreement, that is not to be performed within the space of one year from the making thereof; unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing, signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.” This clause in the 29th of Charles, 2, ch. 3, sec. 4, at no great distance of time after its passage, underwent the consideration of all the judges, in the ease of Peter vs. Compton, Skinner, 353. In that case the action was upon an agreement, in which, the defendant promised for one guinea to give the plaintiff so many at the day of his marriage. The marriage did not happen within the year, and the question was, whether such an agreement was within the statute. It was held by a majority of the judges that it was not, and, that where the agreement is to be performed upon a contingent, and it does not appear within the agreement that it is to be performed after the year, there a writing is unnecessary, for the reason, the contingency might happen within the year.

The case of Donellan vs. Read, 3 Barn, and Adol., 899, went farther, and decided, that where all is to be done by one of the parties, is to be done within a year, the statute does not apply. In that case the defendant was tenant to the plaintiff for twenty years, and, in consideration that the plaintiff ⁴⁸⁸ would make alterations on the demised premises to the amount of fifty pounds, the defendant agreed to pay, during the' remainder of his term, an increased annual rent of five pounds. The alterations were made within the year, and the action was brought to recover the additional five pounds as rent agreed upon. In the case of Peter vs. Compton, the court seemed to consider a performance on both sides necessary, for, in that case, the' contract was completely performed by one of the parties by the payment of the guinea at the time of the making of the agreement.

But while a full and complete performance by one of the parties within a year, will take the agreement, out of the' statute, a part performance will not have that effect. Boydell vs. Drummond, 11 East., 159. ' These principles have been fully recognized by innumerable decisions both in England and this country. And in pursuance of the principles which they sustain, especially that of the case of Peter vs. Compton, it has been held both in England and in these States, the statute will not apply where the contract can, by any possibility, be fulfilled or completed in the' space of a year, although the parties may have intended its operation should extend through a much longer period. A contract to serve another for two years, would be within the statute; but a contract to serve for an indefinite period, subject to’ be put an end to at any time upon reasonable 'notice, is not within the statute, though it may extend beyond the year.

Souch vs. Strawbridge, 2 Manning, Granger and Scott, 815. Shute vs; Dorr, 5 Wendell, 204 . Drummond vs. Burrell, 13 Wendell, 307 . Where a party contracts by parol to work for the term of two years, for which he is to receive a given sum, and quits at the end of six months, the contract is within the statute of frauds, and an action cannot be maintained for its non-performance.

Ibid. But if the contract be for an indefinite time, and the services under it are to be compensated for in payments by the week or month, the statute does not apply. Moore vs. Fox, 10 Johns., 244 . In that case the defendant had promised to pay the plaintiff two dol ⁴⁸⁹ lars a year for his services as a minister, and had paid it half yearly for several years.

The contract was understood by the court as one to pay half-yearly, and the case was decided on that ground. Although there is nothing in the evidence of the case now before us, showing when the testator of the defendants was to pay the plaintiff for his services and advances, it is but fair to presume, this obligation on the grandfather was not complete on the purchase of every garment, bonnet, or pair of shoes, so as to give the plaintiff a right of action