Bain v. McDonald

• Decision Date: 01 May 1896
• Citation: 20 So. 77,111 Ala. 269
• Parties: BAIN v. MCDONALD.
• Court: Alabama Supreme Court

20 So. 77

111 Ala. 269

BAIN v. MCDONALD.

Supreme Court of Alabama

May 1, 1896

Appeal from circuit court, Marshall county; John B. Tally, Judge.

Action by A. J. McDonald, administrator, against James S. Bain. Judgment for plaintiff, and defendant appeals. Reversed.

O. D Street, for appellant.

Lusk &amp Bell, for appellee.

BRICKELL C.J.

This was an action in which the appellee, as administrator of James S. Bain, deceased, was plaintiff, and the appellant was defendant. The complaint contains a single count, alleging that the defendant was indebted to the plaintiff in the sum of $400, for the rent of lands for the year 1891, due and payable on the 15th of November, 1891. The defendant pleaded the general issue and three special pleas. The first special plea is that the agreement or contract on which the suit was founded was not in writing, and was offensive to the clause of the statute of frauds directed against agreements not to be performed within one year. The second avers that the contract was for the sale of an interest in lands for a term longer than one year, was not in writing, and was offensive to the fifth clause or subdivision of the statute. The third in substance, avers that the premises rented, at the time of the renting, were in possession of one George Bain, a former tenant of the plaintiff, who refused to surrender possession thereof, continuing to hold them during the term, and that plaintiff, though requested, failed and refused to place the defendant in possession. Issue seems to have been taken on the pleas, and there was a trial, and verdict and judgment rendered for the plaintiff.

The facts as to which there is no conflict in the evidence are that on the 20th day of December, 1890, the plaintiff offered the lands for rent at public outcry, for a term of one year to commence on the 1st day of January, 1891, and the defendant became the highest bidder at the sum of $400 payable on the 15th day of November, 1891; but of the renting or agreement there was no note or memorandum in writing signed by either party. The agreement was not for a lease of longer term than one year, and, of consequence, not within the influence or operation of the fifth clause or subdivision of the statute of frauds, upon which the third plea is founded. It was a verbal renting or lease for a term of one year, to commence in the future, within the influence of the first clause or subdivision of the statute, directed against verbal agreements which by their terms are not to be performed within one year from the making thereof. Crommelin v. Thiess, 31 Ala. 412; Parker v. Hollis, 50 Ala. 411; Treadway v. Smith, 56 Ala. 345; Martin v. Blanchett, 77 Ala. 288; White v. Levy, 93 Ala. 484, 9 So. 164; Smith v. Pritchett, 98 Ala. 649, 13 So. 569. It is insisted, as the action is founded wholly on the promise of the defendant to pay the rent, and as that, by the terms of the agreement, was payable within less than a year, the case is not within the influence of the statute. The consideration of the promise to pay the rent, and its only consideration, was that the plaintiff, on the commencement of the future term, would let the defendant into the possession and enjoyment of the premises, and, during the term, would maintain and defend the possession against his own acts, as well as against dispossession or disturbance by title paramount. The promise cannot be dissevered from the consideration; and, to support the present action, the plaintiff, of necessity, must have shown the agreement in its entirety. Lapham v. Whipple 8 Metc. (Mass.) 59. An entire agreement cannot be within the statute of frauds as to a part, and without it as to the residue. Atwater v. Hough, 29 Conn. 508. In Browne, St. Frauds (5th Ed.) § 140, the principle is stated: "It is clear that, if the several stipulations are so interdependent that the parties cannot reasonably be considered to have contracted but with a view to the performance of the whole, or that a distinct engagement as to any one stipulation cannot be fairly and reasonably extracted from the transaction, no recovery can be had upon it, however clear of the statute of frauds it may be, or whatever the form of action employed. The engagement in such cases is said to be entire and indivisible." There are cases in which a party, having performed a part of an agreement, separable and divisible from the part offensive to the statute, may recover on the part so performed. An agreement may relate to a sale of personal property, and to a sale of an interest in land, and a specific price or value fixed on the personal property, of which there has been delivery. By the agreement the species of property are separated and distinguished, and...