Durfee v. O'Brien

• Decision Date: 12 May 1888
• Citation: 16 R.I. 213,14 A. 857
• Parties: DURFEE v. O'BRIEN.
• Court: Rhode Island Supreme Court

14 A. 857

16 R.I. 213

DURFEE

v. O'BRIEN.

Supreme Court of Rhode Island.

May 12, 1888.

On motion for new trial.

Action to recover the contract price for building a house, brought by Philip H. Durfee, administrator, etc., against Catharine O'Brien. Judgment for plaintiff. Defendant files his petition for a new trial.

Simon S. Lapham, for plaintiff. Edwin C. Pierce, for defendant.

STINESS, J. The record in this case shows that Philip H. Durfee, the plaintiff's intestate, built a house for the defendant in 1874. An agreement, signed by said Durfee, but not signed by the defendant, was put in evidence, from which it appeared that the price was to be $2,400, of which sum $500 was to be paid when the house was begun, $500 when it was finished, and the balance in five yearly payments, with interest payable semi-annually. Payments having been made from time to time, as shown by receipts, and an account entered by said Durfee in a book in the possession of the defendant, the cost of the house being entered as $2,416.67, the plaintiff sues for the balance due on the contract, with interest. The defendant asked the court to charge the jury "that as the contract sued upon was not to be performed by both parties within one year from the making thereof, and was not signed by the defendant, or by some one authorized by her to sign it, all the provisions of the contract are void, and the plaintiff can recover only, upon the quantum meruit counts, the reasonable value of the services rendered and materials furnished." The presiding justice refused this request, and charged the jury "that if the house was built under the contract, if one has been proved, and accepted by the defendant, the plaintiff can recover the contract price; that if there was a contract for building the house for a stipulated price, and the house was built according to contract, and all the stipulations on the part of Durfee were performed within a year, according to the intent of the contract, the mere fact that payment for the house was not, according to the agreement, to be completed within one year, would not relieve the defendant from liability to pay the agreed price, even if the agreement was not signed by the defendant or her agent." The defendant sought to show that it was not worth $2,400 to build the house.

We must assume that the jury found there was a contract to pay $2,400; and the question to be determined, therefore, is whether the instruction was correct that the statute of frauds does not extend to actions for payment upon contracts which are wholly executed on one side within a year. In England this doctrine was first decisively laid down in Donellan v. Read, 3 Barn. & Adol. 899, in 1832. In Souch v. Strawbridge, 2 C. B. 808, it was approved by TINDAL, C. J., but the decision of the case did not turn upon that point. In Cherry v. Heming, 4 Exch. 631, it was again sustained; again, in Smith v. Neale, 2 C. B. 67, 89 E. C. L. 66. And in the recent case of Miles v. New Zealand Co., 54 Law J. 1035, NORTH, J., (page 1040,) citing Donellan v. Read and Cherry v. Iteming, says: "I think there is a great deal of force in the observation that what is required by the statute is that the agreement should be performed, and not that it should be partly performed, and that performance means performance by both parties. But that has been settled; and it has been decided that all that is required is performance by one party within the year, however many years may have to elapse before the agreement is performed by the other party." In this country, however, there has been considerable conflict of opinion. In Alabama, Georgia, Maine, South Carolina, Maryland, Illinois, Ohio, Indiana, Arkansas, Missouri, and Wisconsin the English rule has been followed. See Rake v. Pope, 7 Ala. 161; Johnson v. Watson, 1 Ga. 348; Holbrook v. Armstrong, 10 Me. 31; Compton v. Martin, 5 Rich. Law, 14; Ellicott v. Turner, 4 Md. 476; Curtis v. Sage, 35 III. 22; Randall v. Turner, 17 Ohio St. 262; Haugh v. Blythe, 20 Ind. 24; Pledger v. Garrison, 42 Ark. 246; Suggett v. Cason, 26 Mo. 221; McClellan v. Sanford, 26 Wis. 595. In New Hampshire the decisions are conflicting; the earliest and latest sustaining the English rule. See Standing v. Sargent, 33 N. H. 239; Emery v. Smith, 46 N. H. 151; Perkins v. Clay, 54 N. H. 518. The contrary doctrine has been held in Vermont, Massachusetts, and New York. See Pierce v. Paine, 28 Vt. 34; Marcy v. Marcy, 9 Allen, 8; Lockwood v. Barnes, 3 Hill, 128; Broadwell v. Getman, 2 Denio, 87; Kellogg v. Clark, 23 Hun, 393. In the former class of cases it is held that the statute does not extend to contracts which are wholly executed on one side, or which may be executed by one side, within a year, but only to contracts which as a whole, are not to be executed within a year. These cases construe the words "not to be performed" to mean not to be performed on either side within a year. The other class of cases hold the performance by one party is not performance of the agreement, and that, in any view, the part of the contract sued upon comes within the statute, for which the part performed is only the consideration. As to the question which is involved in this case, viz., the payment for property delivered and accepted under a promise to pay, we think the weight of authority is in favor of the English rule. Mr. Browne, in his work on the Statute of Frauds, suggests a reason for the...