George Ellicott vs. John Turner and Geo. Peterson, Exc'rs of John Peterson, 4 Md. 476

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 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, 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, 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 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 dollars 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 eo instanti against him. The reasonable

interpretation of the agreement is, that the plaintiff was to bring up the child, clothe, board and educate her, and to be compensated for so doing by the grandfather, not immediately on the accruing of every item of expense, but when the contract was completely performed by the plaintiff, so far as the education of the child was concerned ; and this seems to have been the continuing understanding of the parties for no payments were made by the grandparent.

But, be this as it may, it is a principle of law that where the contract is silent as to the time of payment, and “the payment is to be made in consideration of the services, those services are a condition precedent to the payment, and must be performed in full, before payment can be enforced.” Drummond vs. Burrel, 13 Wendall, 308. According to these principles the agreement in this case would undoubtedly fall within the meaning of the fourth

section of the statute of frauds, were it not for the subject matter on which it was to operate. It was to educate and board the girl. Her education and support, necessarily, were limited to her life, and the duration of that was uncertain; it might or might not extend beyond a year; in other words, her death ¡ was a contingency which might occur before the lapse of a jmar, and this circumstance rendered the agreement one which might have been fulfilled in less time than a year.

But, it was argued by the counsel for the appellees, that this resting the validity of the agreement on the possibility of death occurring within the year, was a subtlety and refinement not authorized by the principles recognized in the early

interpretations of the statute. We do not concur in this criticism, but, on the contrary, think the doctrine a legitimate and inevitable consequence from the reasons on which they were based. There can be no difference in principle between a possibility dependent upon the volition of the individual, and one consequent upon a natural event. If by the exercise of the will of a person, the contract can be taken without the statute, we can see no reason why

an act of nature should not accomplish the same result, and this view has been taken in several cases. It was sanctioned in the case of Souch vs. Strawbridge, 2 Maning, Granger and Scott, 808, (52 Eng. C. L., 806,) and in the case of Onslow Peters vs. The inhabitants of Westborough, 19 Pick., 364 — a case in its facts strikingly analagous this one — the opinion of the court was pronounced upon it.

In that case it was agreed between the plaintiff and the father of the child, that the plaintiff should take her into his family and employment, for one month, on trial, and if, at the end of the- month, he was not satisfied with her^ he might return her to her father, but that, otherwise, he should- support her until she was eighteen years of age, and should not return her for any cause but bad conduct on her part; that, in pursuance of this- agreement, she went into the family of the plaintiff, and that at the- end of the month the plaintiff expressed himself to be satisfied with her, and never offered to-return her to her father.

The court in review of the decisions,, thus, in our judgment, correctly state the law, “From these authorities it appears,” say they, “to be settled, that in order to-bring a pa.rol agreement within- the clause- of the statute in question, it must either have been- expressly stipulated by the-parties, or it must appear to have been so understood by them, that the agreement was not to-be performed within a year. And this stipulation or understanding is to be absolute and certain, and not to depend on any contingency.

In the-present case, the performance of the plaintiff’s agreement with the child’s father depended on the contingency of her life. If she had continued in the plaintiff’s service,, and he had supported her, and she had died within a year after the making of the agreement, it would have been fully performed. And an agreement by parol is not within the statute, when by the happening of any contingency it might be performed within a year.” So in the case of Loyon vs.

King, 11 Metcalf, 411, an oral agreement not to carry on the business of a livery stable keeper, was held valid, because it must necessarily terminate on the death of the contracting party, which might occur within as well as after the lapse of a year. If the contract can be accomplished and fulfilled within a year it is not within the statute; but no contingency can take a contract out of the statute if it be of a nature to defeat instead of fulfilling it. Harris vs. Porter, 2 Harrington, 27. These views dispose of the fifth prayer of the defendants, and also of their sixth.

The latter is erroneous for reasons in addition to those which we have urged to the other. It is not confined to the promise made at the time the contract was entered into, but extends to the promise to pay which was made by the defendants’ testator shortly before his death. We have shown that the agreement was not within the statute; but had it been, the sixth prayer of defendants ought not to have been granted for their testator would have been responsible on the common counts, the contract having been executed.

Where the contract has been fully executed, and nothing remains to be done but the payment of the money, it is not necessary to declare upon it specifically Ridgeley vs. Crandell and wife, decided at this term, and the authorities there collected. Ante, 435.

Where there is a contract for the performance of services, or for the sale and delivery of goods which is within the statute, if the services be rendered or the goods delivered and be accepted, the party doing the work or delivering the goods may recover on a quantum meruit, and he may give in evidence the agreement under which the labor was performed or the goods delivered as a part of the res gestee. The law will not allow a man to accept a delivery of goods without making him liable to pay for them.

It must be observed that the original agreement in this case was not within that clause of the statute of frauds, which relates to "any special promise to answer for the debt, default, or miscarriage of another.” It was not a collateral but an original undertaking, for although the children might have been-responsible, under other circumstances than those which constitute this case, for the support, &c., extended to them by their step-father, yet, that support, &c., was extended, not on their credit, either express or implied, but, solely on the credit and liability of the testator of the defendants.

Where there is no credit given to the party who receives the benefit of the services rendered or money advanced, the agreement to pay by a third party is an original undertaking, and for that reason not within the statute. Elder vs. Warfield, 7 H. & J., 391. And Kettlewell, et al., vs. Conolly, 1 Gill, 260. We regard the moral obligation resting on the defendants’ testator, as a sufficient consideration to support his promise tp pay. To use the language of Lord Mansfield, in the case of Hawkes and wife vs.

Saunders, Cowper, 289, “where a man is under a legal or equitable obligation to pay, the law implies a promise, though none was ever actually made; a fortiori, a legal or equitable duty is a sufficient consideration for an actual promise.

Where a man is under a moral obligation, which no court of law or equity can enforce, and promises, the honesty and rectitude of the thing is a consideration.” This language of Lord Mansfield, however, must be understood as applying only to cases of promise where there was a pre-existing obligation, either legal or equitable, to pay, and not as éxtending to that class of cases which arise out of the moral affections alone.

So it has been held, where a son, who was of full age and had ceased to be a member of his father’s family, was suddenly taken sick among strangers, and, being poor and in distress, was relieved by the plaintiff, and after-wards the father wrote to the plaintiff promising to pay him the expenses incurred, that the father was 'not responsible on such promise. Mills vs. Wyman, 3 Pickering, 207.

Had the father in that case originally agreed to pay for any assistance wbipjj might thereafter.be rendered to his son he would have been liable, and if there had been no credit given to the son, the liability of the father would have been complete without the agreement being in writing.

So in the case now before us, although the grandfather was not bound to support his grandchildren, (the statute of 43 Elizabeth, ch. 2, not being in force in this State,) yet be was capable of making a contract on his own credit for their benefit, and such contract would constitute both a good and valuable consideration, for a promise to pay after the thing contracted to be done bad been executed. Had the services been rendered before the grandfather promised to pay for them, his promise would have been unavailing, because it would have been a mere nude pact.

The facts, however, show that he made the promise to pay before the services were rendered, and that they were performed solely on his credit. Notwithstanding these views, we think the court properly rejected the prayers of the plaintiff. They were defective in this, they assumed a fact which was to be found by the jury, to wit, the existence of the original contract. See Gaither vs. Martin, 3 Md. Rep., 160. Susquehanna, Rail Road Co., vs. Woodruff, 4 Md. Rep., 252. Judgment reversed and procedendo awarded.