Beattie v. Traynor.

• Citation: 49 A.2d 200
• Decision Date: 01 October 1946
• Docket Number: No. 201.,201.
• Court: United States State Supreme Court of Vermont
• Parties: BEATTIE v. TRAYNOR.

49 A.2d 200

BEATTIE

v.TRAYNOR.

No. 201.

Supreme Court of Vermont.

Oct. 1, 1946.

Appeal from Caledonia County Court; Black, Presiding Judge.

Action by Rubie P. Beattie against W. Craig Traynor, administrator of the estate of Clarence A. Smith, for allowance of a claim against the estate based upon a contract alleged to have been made between decedent and plaintiff for care and support of an illegitimate child and for use and benefit of the child. From a judgment for plaintiff, defendant appeals.

Affirmed.

Clifton L. Drew, of Lyndonville, and Lee E. Emerson, of Barton, for plaintiff.

Writters & Longmoore, of St. Johnsbury, for defendant.

Before MOULTON, C. J., SHERBURNE and STURTEVANT, JJ., and CLEARY and ADAMS, Superior Judges.

SHERBURNE, Justice.

This is an appeal from the disallowance of a claim against the estate of the late Clarence A. Smith, based upon a contract alleged to have been made between him and the plaintiff for the care and support of an illegitimate child named Clarence James Smith, and for the use and benefit of the child. The case has been here once before upon the pleadings, and reference is had to the opinion reported in 114 Vt. 238, 42 A.2d 435.

There was a trial upon the merits resulting in a verdict and judgment for the plaintiff, and the case is again here.

Plaintiff's evidence tended to show that she had kept house for Frank Randall since 1916; that on February 14, 1932, she gave birth to a child, the son of the decedent, Clarence A. Smith; that owing to complications she stayed 6 weeks at the hospital and did not return to Randall's for a few weeks longer; and that when she left the hospital the child was taken to the home of a near neighbor of Mr. Smith, and kept there at his expense until the date of a conversation between Mr. Smith and the plaintiff at Randall's house one evening in July, 1933, at which time the claimed contract was made. All of the direct evidence relative to this conversation came from Randall. He testified that the plaintiff told Mr. Smith that she was going to get this baby and take it away, and that she expected him to support the child, and that if he didn't, she would bring suit against him. He replied that he didn't want anything like that, and said that he would pay her $1000 a year for the maintenance and support of the child, and would give her $2500 a year for the education, training and benefit of the child, and that she should bring the child to Randall's and stay there with it, and he further said that he would pay her this money until the child was 21 years old, or either he or the child died. To all this the plaintiff replied that that was all right. No objection, further than to the form of several questions asked, was made to Randall's testimony about this conversation until he was asked about what the plaintiff said to the proposition, and to which Randall answered as in the last sentence, but, after the witness had concluded his testimony about what Mr. Smith said, the defendant moved that this testimony be stricken because it appeared that the alleged contract was not in writing, and was within the statute of frauds, in that it was not to be performed within one year from the making thereof. The testimony as to what the plaintiff said to the proposition was received subject to this objection. We need not decide whether the objection came too late, but will treat the exceptions as properly raising the question of the statute of frauds.

P.L. 1675 provides: ‘An action at law or in equity shall not be brought * * * upon an agreement not to be performed within one year from the making thereof; Unless the promise, contract or agreement, upon which such action is brought or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith, * * *.’ This statute is like the early English statute. The settled construction of this statute in England, before the Declaration of Independence, was that an oral agreement which, according to the intention of the parties, as shown by the terms of the contract, might be fully performed within a year from the time it was made, was not within the statute, although the time of its performance was uncertain, and might probably extend, and be expected by the parties to extend, and did in fact extend, beyond the year; and this is the construction adopted in our own cases. Lawrence v. Stewart, 109 Vt. 333, 343, 196 A. 750; Dyer v. Lalor, 94 Vt. 103, 118, 109 A. 30; Blanchard v. Weeks, 34 Vt. 589, 591; Sherman v. Champlain Transportation Co., 31 Vt. 162, 182, and cases cited therein. Many of the early English cases are reviewed in Blanchard v. Weeks, supra, and by Mr. Justice Gray in Warner v. Texas & Pacific R. Co., 164 U.S. 418, 17 S.Ct. 147, 41 L.Ed. 495, a case cited in Lawrence v. Stewart, supra.

The factual situations in our cases fairly illustrate the rule. In Sherman v. Champlain Transportation Co., supra, the contract was one that by its terms would extend through an indefinite period of years, unless terminated by the act of one of the parties, who had the right to terminate it when he chose. By the terms of the contract it is evident that the parties contemplated it would continue through a period of years, as it did, in fact. The Court held it not to be within the statute, saying, ‘It seems to us very certain that to the class of cases to which this belongs, that is, where the consummation of the contract depends upon the election of one party, or any other contingency which may happen within the year, the statute of frauds has no application.’ In Blanchard v. Weeks, supra, an agreement to refrain from the practice of medicine at McIndoe's Falls while the plaintiff should reside and practice there, ‘and forever,’ was held not to be within the statute, as it depended upon the contingency of death, which might happen during the year. In Dyer v. Lalor, supra, a marriage contract which might, by its terms, have been fully performed within one year, although it in fact extended beyond that time, was held not to be within the statute. In Lawrence v. Stewart, supra [109 Vt. 333, 196 A. 754], a case involving an agreement for the support of the aged mother of the parties during her lifetime, the court said: ‘The contract here involved was the personal contract of the plaintiff. It was to be performed by her, alone. It could not become binding upon her representative or any other person. It continued only through the lifetime of Bridget Stewart, and terminated at her death. Unless sooner ended in some legal way, it was fully performed at that time. Upon the same hypothesis, it would be fully performed on the plaintiff's death. So this contract might be fully performed within 1 year from the time it was entered into. To such a contract the statute of frauds does not apply.’

The defendant calls our attention to the last paragraph in the opinion in Hinckley v. Southgate, 11 Vt. 428, 430, which suggests that, if the time of performance depends upon a contingency, the test is whether the contingency will probably happen, or may reasonably be expected to happen, within the year, and ends with this sentence: ‘But where the contract is not expected to be performed within the year, but depends upon a contingency, which may, by mere possibility, occur within the year, it would seem but a reasonable strictness of construction, to require the contract to be reduced to writing. Such was, in effect, the case of Boydell v. Drummond, 11 East 142, 11 Swifts Dig. 263.’ The contract in this case was in express terms to carry on a mill for a year from a future day, and this paragraph of the opinion was not necessary to the decision of the case, and cannot stand with the other authorities. In fact the cited case of Boydell v. Drummond, as shown in Blanchard v. Weeks, supra, and in Warner v. Texas & Pacific R. Co., supra, does not support the conclusion. As said in the former case: ‘although the court held the contract within the statute, it was expressly on the ground that by the terms of the agreement it was not to be, and could not legally be, performed within the year.’

Peters v. Inhabitants of Westborough, 19 Pick., Mass., 364, 31 Am.Dec. 142, concerns an agreement much like the one in the instant case. There one Catherine Ladds came into the plaintiff's family in March, 1834, when she was 11 or 12 years of age, and remained there until her death, which took place on May 31, 1835, after a sickness of four or five months; and the defendants proposed to show by parol evidence, that a short time before Catherine went into the plaintiff's family, it was agreed between him and her father, 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 18 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 said: ‘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.’

The agreement was not within the statute, and defendant's exceptions are not sustained.

Mr. Smith died on October 19, 1942. On his direct examination Randall testified to hearing a talk between the plaintiff and Smith about a year or a year and a half before he died, relative to the payment of money on the contract, in which...