Emery v. Burbank

• Decision Date: 09 March 1895
• Citation: 39 N.E. 1026,163 Mass. 326
• Parties: EMERY v. BURBANK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

163 Mass. 326

39 N.E. 1026

EMERY v. BURBANK.

Supreme Judicial Court of Massachusetts, Middlesex.

March 9, 1895

COUNSEL

Elisha Greenhood, for plaintiff.

John D Long and Henry C. Mulligan, for defendant.

OPINION

HOLMES, J.

This is an action on an oral agreement, alleged to have been made in Maine in 1890 by the defendant's testatrix, Mrs. Rumery to the effect that if the plaintiff would leave Maine, and take care of Mrs. Rumery, the latter would leave the plaintiff all her property at her death, and also would put $4,000 into a house, which the plaintiff should have. At the trial evidence was introduced tending to prove the agreement as alleged. The presiding justice ruled that the action could not be maintained, and the case is here on exceptions. As we are of opinion that the ruling must be sustained, under St.1888, c. 372, requiring agreements to make wills to be in writing, a fuller statement of the facts is not needful.

There is no doubt of the general principles to be applied. A contract valid where it is made is valid everywhere, but it is not necessarily enforceable everywhere. It may be contrary to the policy of the law of the forum. Van Reimsdyk v. Kane, 1 Gall. 371, 375, Fed.Cas. No. 16,871; Greenwood v. Curtis, 6 Mass. 358; Fant v. Miller, 17 Grat. 47, 62. Or again, if the law of the forum requires a certain mode of proof, the contract, although valid, cannot be enforced in that jurisdiction without the proof required there. This is as true between the states of this Union as it is between Massachusetts and England. Hoadley v. Transportation Co., 115 Mass. 304, 306; Pritchard v. Norton, 106 U.S. 124, 134, 1 Sup.Ct. 102; Downer v. Chesebrough, 36 Conn. 39; Kleeman v. Collins, 9 Bush. 460; Fant v. Miller, 17 Grat. 47; Hunt v. Jones, 12. R.I. 265, 266; Yates v. Thomson, 3 Clark & F. 544, 586, 587; Bain v. Railway Co., 3 H.L.Cas. 1, 19; Leroux v. Brown, 12 C. B. 801. When the law involved is a statute, it is a question of construction whether the law is addressed to the necessary constituent elements or legality of the contract on the one hand, or to the evidence by which it shall be proved on the other. In the former case, the law affects contracts made within the jurisdiction wherever sued, and may affect only them (Drew v. Smith, 59 Me. 393); in the latter, it applies to all suits within the jurisdiction, wherever the contracts sued upon were made, and again may have no other effect. It is possible, however, that a statute should affect both validity and remedy by express words, and, this being so, it is possible that words which in terms speak only of one should carry with them an implication also as to the other. For instance, in a well-known English case Maule, J., said: "The fourth section of the statute of frauds entirely applies to procedure;" and on this ground it was held that an action could not be maintained upon an oral contract made in France. But he went on: "It may be that the words used, operating on contracts made in England, render them void." Leroux v. Brown, 12 C.B. 801, 805, 827. We cite the language, not for its particular application, but as a recognition of the possibility which we assert.

The words of the statute before us seem in the first place, and most plainly, to deal with the validity and form of the contract. "No agreement *** shall be binding, unless such agreement is in writing." If taken literally, they are not satisfied by a written memorandum of the contract; the contract itself must be made in writing. They are limited, too, to agreements made after the passage of the act,--a limitation which perhaps would be more likely to be inserted in a law concerning the form of a contract than in one which only changed a rule of evidence. But we are of opinion that the statute ought not to be limited to its operation on the form of contracts made in this state. The generality of the words alone, "no agreement," is not conclusive. But the statute evidently embodies a fundamental policy. The ground, of course, is the prevention of fraud and perjury, which are deemed likely to be practiced without this safeguard. The nature of the contract is such that it naturally would be performed or sued upon at the domicile of the promisor. If the policy of Massachusetts makes void an oral contract of this sort made within the state, the same policy forbids that Massachusetts testators should be sued here upon such contract without written evidence, wherever it is made.

If we are right in our understanding of the policy established by the legislature, it is our duty...