Arkansas Midland Ry. Co. v. Whitley

• Citation: 15 S.W. 465
• Parties: ARKANSAS MIDLAND RY. CO. v. WHITLEY <I>et al.</I>
• Decision Date: 07 February 1891
• Court: Arkansas Supreme Court

15 S.W. 465

ARKANSAS MIDLAND RY. CO. v. WHITLEY et al.

Supreme Court of Arkansas.

February 7, 1891.

Appeal from circuit court, Monroe county; M. T. SANDERS, Judge.

John C. Palmer, for appellant. Sanders & Watkins, for appellees.

BATTLE, J.

This was an action for damages that were caused by a breach of a verbal agreement entered into by appellant and appellees in 1872. The agreement was that appellees would permit appellant to build its railroad across their land, and that appellant would, in consideration thereof, construct, keep, and maintain good and sufficient cattle-guards across its road on each side of appellees' land, to prevent stock running at large from trespassing on their fields. In pursuance of this agreement, the road was built over the land, but good and sufficient cattle-guards were not kept and maintained. Appellant insists that the action cannot be maintained because the agreement comes within the statute of frauds. This is the only question presented for our consideration.

It is insisted that the agreement comes within the statute, because it was not to be performed within one year after it was made, and no note or memorandum thereof was made. Section 3371 of Mansfield's Digest, upon which this contention is based, provides: "No action shall be brought * * * to charge any person upon any contract, promise, or agreement that is not to be performed within one year from the making thereof, unless the agreement, promise, or contract upon which such action shall be brought, or some note or memorandum thereof, shall be made in writing, and signed by the party to be charged therewith, or signed by some other person by him thereunto properly authorized."

Substantially the same clause in 29 Car. II. c. 3, § 4, was considered, a short time after its enactment, by all the judges in Peter v. Compton, Skin. 353. In that case the action was upon an agreement by which the defendant, for one guinea, promised to give the plaintiff so many at the time of his marriage. The marriage did not occur within the year, and the question was, did the agreement come within the statute? The decision of the question depended upon the meaning of the words, "upon any agreement that is not to be performed within the space of one year from the making thereof," in the statute. A majority of the judges held that it did 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 note in writing is not necessary, for the contingent might happen within the year." Since then the same question has generally been decided in England and America as held in Peter v. Compton, 1 Smith, Lead. Cas. pt. 1, (8th Ed.) 614, and note.

In Fenton v. Emblers, 3 Burrows, 1278, the defendant's testator promised the plaintiff "that, if she would become his housekeeper, he would pay her wages after the rate of £6 per annum, and give her, by his last will and testament, a legacy or annuity of £16 by the year, to be paid yearly. The plaintiff, on this agreement, entered into the testator's service, and became his housekeeper, and continued for more than three years." The court held that the contract, though by parol, did not come within the statute; for the contingency upon which it depended might have happened within a year.

In construing the one-year statute of fraud in McPherson v. Cox, 96 U. S. 404, Justice MILLER, in delivering the opinion of the court, said: "The statute of frauds applies only to contracts which, by their terms, are not to be performed within that time. In other words, to make a parol contract void it must appear that it was the understanding of the parties that it was not to be performed within a year from the time it was made." In that case it was held that a contract to pay an attorney at law for his services, to be rendered in suits concerning land, a specific sum of money, out of the proceeds of the sale of the land, when it was sold...