Atwood's Adm'r v. Fox

• Decision Date: 31 July 1860
• Parties: ATWOOD'S ADMINISTRATOR, Plaintiff in Error, v. FOX, Defendant in Error.
• Court: Missouri Supreme Court

30 Mo. 499

ATWOOD'S ADMINISTRATOR, Plaintiff in Error,

v.FOX, Defendant in Error.

Supreme Court of Missouri.

July Term, 1860.

1. A., by verbal agreement, in June, 1856, contracted to sell to B. his crops of hemp for the years 1856 and 1857, for which B. was to pay one hundred dollars per ton. The crop of the year 1856 was delivered to B. and the contract price paid therefor by B. A. offered to deliver to B. under the contract the crop of the second year, 1857; B. refused to receive the same. Held, that the contract was within the fifth section of the statute of frauds, not being to be performed within one year from the making thereof; that there was no such performance thereof as would take the case out of the statute; that the statute was a bar to any action, legal or equitable, on such agreement; that A. could not in a suit brought on such agreement, in which the statute of frauds was pleaded as a bar, abandon the special contract sued on, and recover on an implied agreement in the same action.

Error to Carroll Circuit Court.

Troxell & Ray, for plaintiff in error.

I. The court erred in sustaining the demurrer. There was such a part performance of said contract as took the case in a court of equity out of the statute of frauds. A fraud would be worked upon plaintiff if the defendant is allowed to set up the statute of frauds. A court of equity should interpose against the setting up of the statute of frauds. Equitable relief should be afforded. (2 Sto. Eq. § 717-720, 746, 760-1, 798, 764, 742; 1 Sto. Eq. p. 330; 2 Pars. on Contr. 554; 20 Mo. 84; 26 Mo. 221.)

Harris, for defendant in error.

I. The agreement was not to be fully performed within one year. No action can be brought upon it; notwithstanding there may have been a part performance. (3 Hill, 130; 2 Barb. Ch. 228; 2 Denio, 87; 9 B. Monr. 428; 1 Gray, 123; 26 Mo. 221.)

EWING, Judge, delivered the opinion of the court.

This was an action on a verbal agreement entered into in June, 1856, by which plaintiff's intestate agreed to sell and deliver his crops of hemp raised in the years 1856 and 1857, and for which defendant was to pay one hundred dollars per ton. The petition alleges the delivery of the crop for the first year and the payment therefor by the defendant of the contract price; that in the succeeding year, 1857, he raised a crop of hemp, which, in the spring of 1858, he offered to deliver according to the stipulations of the agreement, but that defendant refused to receive the same; that at the time of the delivery of the first crop hemp was worth at the place of delivery one hundred and thirty dollars per ton, and in the spring of 1858 it was worth only fifty dollars per ton.

There was a demurrer to the petition, which being sustained, the cause is here by writ of error. The cause assigned in the demurrer was that the agreement sued on was not to be performed within one year from the making thereof, and this seems to be conceded by counsel; but it is insisted that the facts and circumstances alleged in the petition are such as to preclude the defendant from interposing the statute of frauds. The acts which, it is averred, entitle the plaintiff to the relief claimed are a part performance of the contract-- namely, the delivery of the first year's crop of hemp. The construction of that branch of the statute by all the adjudged cases, without exception, it is believed, is that the agreement is within the statute, if it is not to be wholly performed or executed within the year, and part performance will not render the contract valid; that the word performance must mean a complete and not a partial performance. (Boydell v. Drummond, 11 East, 142; Brangirdle v. Heald, 1 Barn. & Ald. 722; 9 Barn. & Cres. 392; Lockwood v. Barnes, 3 Hill, 130; Holloway v. Hampton, 4 B. Monr. 416.) It has been held that where the contract has been entirely performed on one side, the other side can not interpose the defence arising under the section of the statute in question; but such is not the case before us. The agreement here is one which, although consisting of stipulations, a part of which are capable of performance within the year, the entire contract, and by...