Brown v. True

Decision Date13 December 1923
Citation122 A. 850
PartiesBROWN v. TRUE et al.
CourtMaine Supreme Court

Exceptions from Supreme Judicial Court, Cumberland County, at Law.

Action by George W. Brown against Norman True and others. Order of nonsuit, and plaintiff excepts. Exceptions overruled.

Argued before CORNISH, C. J., and HANSON, PHILBROOK, MORRILL, and DEASY, JJ.

William R. Pattangall, of Augusta, and Raymond S. Oakes, of Portland, for plaintiff.

Chapman & Brewster and Woodman, Whitehouse & Littlefield, all of Portland, for defendants.

CORNISH, C. J. On plaintiff's exceptions to order of nonsuit On August 25, 1921, the plaintiff, a real estate broker, canceled certain written agreements that he had previously made with the defendants in regard to the proposed purchase of certain real estate owned by the Portland Sayings Bank and the division of the profits to be realized from the sale thereof.

In consideration of this cancellation and of all services rendered, brokers' commissions, etc., the plaintiff entered into an oral contract on the same day with the defendants whereby if the Keith theater property, which was a part of the property owned by the savings bank in the city, of Portland, was purchased and sold by them for $235,000, he was to receive $35,000; if sold for less, then he was to receive $25,000—said sums to be paid to the plaintiff in promissory notes of the defendants in the sum of $2,500 each, the first note to be due in six months from date and the others maturing one each six months until the full amount was paid, all of said notes to bear interest at 6 per cent. and be secured by a mortgage on the Preble House property subject to an existing mortgage for $260,000. There is a slight difference as to some of the details between the recollection of the plaintiff and the unsigned memorandum made by the attorney for the defendants on the evening of the day the agreement was made, which memorandum' was introduced in evidence by the plaintiff. But these differences have no bearing upon the Issue here, which is whether an action at law for breach of this oral contract can be maintained when the defendants have invoked by their pleadings the statute of frauds. Reduced to its simplest terms, the obligation on the part of the defendants was that they would give the plaintiff $25,000 or $35,000 in promissory notes running over a series of years, and all secured by a mortgage of real estate.

Is such an oral contract void in the sense of being unenforceable under the statute of frauds? The defendants contend that it is, and the presiding justice took their view. The plaintiff while granting that an oral contract for the sale of lands or any interest in or concerning them does not support an action of law, and that an agreement as to giving a mortgage might of itself be void, at the same time urges that the stipulations on the defendants' part in this contract are separable and independent, and the agreement as to giving the notes can be divorced from the agreement as to the mortgage and an action at law be maintained for breach thereof. The primary and determining question therefore is whether the contract under consideration is entire. If entire, that is an end of the case, because the rule is firmly fixed that—

"If the contract is entire and part is within the statute, it is unenforceable as a whole, and no action can be maintained to enforce the part which would not have been affected by the statute if it had been separate and distinct from the other part." 25 R. C. L. p. 704, § 347.

"A contract though within the statute as to some portion of the performance promised by the defendant may not be so as to the remainder. Such a contract is nevertheless unenforceable, since the contract is an entirety, and the fact that part cannot be enforced involves the unenforceability of the whole." 1 Williston Contracts, § 532, p. 1028.

What is the true legal signification of the term "entire" contract as used in this connection? It is not employed in contradistinction to divisible. The contract may consist of different parts or items—that is, may be divisible—and yet be entire. The promisor may engage to do one thing, or to do two or more things. The first is obviously entire; the second is also entire, if the two or more things or parts are so interdependent, so interwoven, that the parties must be deemed to have contracted only with a view to the performance of; both; and a distinct agreement as to the performance of one thing as apart from the other cannot reasonably be inferred from the transaction as a whole.

The essential test laid down by Professor Williston as to whether a number of promises constitute one contract or more than one is this:

"It can be nothing else than the answer to an inquiry whether the parties assented to all the promises as a single whole, so that there would have been no bargain whatever if any promise or set of promises were struck out. * * * Did the parties give assent to the whole transaction, or did they assent separately to the several things?" 2 Williston Con. § 863.

As illustrating this general rule the following cases may be cited in all of which the oral contract was held to be entire: Where before marriage the spouses orally agreed that neither should claim any interest in the estate of the other, including both real and personal property, Rainbolt v. East, 56 Ind. 538, 26 Am. Rep. 40; agreement to give by will both real and personal property, Gould v. Mansfield, 103 Mass. 408, 4 Am. Rep. 573; Horton v. Stegmyer, 175 Fed. 756, 99 C. C. A. 332, 20 Ann. Cas. 1134, and note; for sale of both real and personal property, Meyers v. Schemp, 67 Ill. 469; Pond v. Sheean, 132 Ill. 312, 23 N. E. 1918, 8 L, R. A. 414; Becker v. Mason, 30 Kan. 697, 2 Pac. 850; Duteil v....

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5 cases
  • Dehahn v. Innes
    • United States
    • Maine Supreme Court
    • April 22, 1976
    ...§ 2-201(1). Furthermore, viewing the agreement between the parties as an 'entire' contract, the defendant, relying on Brown v. True, 1923, 123 Me. 288, 122 A. 850, asserts that, if the contract is entire and part is within the statute, it is unenforceable as a whole, and no action can be ma......
  • Martyn v. First Federal Sav. & Loan Ass'n of West Palm Beach
    • United States
    • Florida District Court of Appeals
    • December 15, 1971
    ...Church of Taft, 1934, 123 Tex. 388, 71 S.W.2d 1090; Bank of New Brockton v. Dunnavant, 1920, 204 Ala. 636, 87 So. 105.3 Brown v. True, 1923, 123 Me. 288, 122 A. 850; Rutherford Nat. Bank v. H. R. Bogle & Co., 1933, 114 N.J.Eq. 571, 169 A. 180.4 Sleeth v. Sampson, 1923, 237 N.Y. 69, 142 N.E.......
  • Union Car Advertising Co. v. Boston Elevated Ry. Co., 2230.
    • United States
    • U.S. Court of Appeals — First Circuit
    • June 13, 1928
    ...to prevent. Such a construction is inconsistent altogether with both the spirit and the letter of the statute." See, also, Brown v. True, 123 Me. 288, 122 A. 850; Brackett v. Brewer, 71 Me. 478; Lawrence v. Chase, 54 Me. 196; Hanson v. Marion, 128 Minn. 468, 151 N. W. 195; Cram v. Thompson,......
  • Massion v. Mt. Sinai Congregation
    • United States
    • Wyoming Supreme Court
    • April 30, 1929
    ... ... within the year." ... And to ... this author's statement may be added that this must be ... true with reference to at least one of the parties to the ... contract, according to the numerical weight of authority (I ... Williston on Contracts, ... promises, which is not free from doubt (25 R. C. L. 704, Sec ... 347; 27 C. J. 318, Sec. 404; Brown v. True, 123 Me ... 288, 122 A. 850; Linebarger v. Devine, 47 Nev. 67, ... 214 P. 532; Godefroy v. Hupp, 93 Wash. 371, 160 P ... 1056, Am. Ann ... ...
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