Beattie v. Traynor., No. 201.

Docket NºNo. 201.
Citation49 A.2d 200
Case DateOctober 01, 1946
CourtUnited States State Supreme Court of Vermont

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.

49 A.2d 201

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

49 A.2d 202

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...

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11 practice notes
  • State v. Goyet, No. 1286
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 7 May 1957
    ...as direct evidence but only in connection with the testimony of the witness who took them. In Beattie v. Traynor, 114 Vt. 495, 501, 49 A.2d 200, this Court held that there was no error in admitting a photograph that was received for the purpose of allowing the jury to make a comparison of t......
  • Kramer v. Kramer, No. 927
    • United States
    • Court of Special Appeals of Maryland
    • 4 June 1975
    ...(1859); Ellicott v. Turner, 4 Md. 476, 487-91 (1853); Wooldridge v. Stern, 42 F. 311, 312-15 (C.C.1890); Beattie v. Traynor, 114 Vt. 495, 49 A.2d 200, 201-03 (1946); 2 A. Corbin, Contracts, § 446, at 549 3 Because the evidence regarding the conduct of the parties and the agreement is uncont......
  • Savelich Logging Co. v. Preston Mill Co.
    • United States
    • Supreme Court of Oregon
    • 17 May 1973
    ...shown. American Textile Machine Corp. v. United States, 220 F.2d 584, 587--588 (6th Cir. Page 1183 1955); Beattie v. Traynor, 114 Vt. 495, 49 A.2d 200, 205 (1946). The Restatement of Contracts, in § 419, provides a rule of guidance in interpretation of doubtful agreements which depends upon......
  • Dobias v. White, No. 163
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 29 January 1954
    ...Mass. 253, 15 N.E. 587; Burtman v. Butman, 94 N.H. 412, 54 A.2d 367; Dissette v. W.J. Cutler Co., supra; Beattie v. Traynor, 114 Vt. 495, 49 A.2d 200. When a defaulting creditor sues the debtor to enforce his original claim, the debtor may set up either a demand for damages for the breach o......
  • Request a trial to view additional results
11 cases
  • State v. Goyet, No. 1286
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 7 May 1957
    ...as direct evidence but only in connection with the testimony of the witness who took them. In Beattie v. Traynor, 114 Vt. 495, 501, 49 A.2d 200, this Court held that there was no error in admitting a photograph that was received for the purpose of allowing the jury to make a comparison of t......
  • Kramer v. Kramer, No. 927
    • United States
    • Court of Special Appeals of Maryland
    • 4 June 1975
    ...(1859); Ellicott v. Turner, 4 Md. 476, 487-91 (1853); Wooldridge v. Stern, 42 F. 311, 312-15 (C.C.1890); Beattie v. Traynor, 114 Vt. 495, 49 A.2d 200, 201-03 (1946); 2 A. Corbin, Contracts, § 446, at 549 3 Because the evidence regarding the conduct of the parties and the agreement is uncont......
  • Savelich Logging Co. v. Preston Mill Co.
    • United States
    • Supreme Court of Oregon
    • 17 May 1973
    ...shown. American Textile Machine Corp. v. United States, 220 F.2d 584, 587--588 (6th Cir. Page 1183 1955); Beattie v. Traynor, 114 Vt. 495, 49 A.2d 200, 205 (1946). The Restatement of Contracts, in § 419, provides a rule of guidance in interpretation of doubtful agreements which depends upon......
  • Dobias v. White, No. 163
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 29 January 1954
    ...Mass. 253, 15 N.E. 587; Burtman v. Butman, 94 N.H. 412, 54 A.2d 367; Dissette v. W.J. Cutler Co., supra; Beattie v. Traynor, 114 Vt. 495, 49 A.2d 200. When a defaulting creditor sues the debtor to enforce his original claim, the debtor may set up either a demand for damages for the breach o......
  • Request a trial to view additional results

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