Freeman v. Foss

• Decision Date: 23 November 1887
• Citation: 145 Mass. 361,14 N.E. 141
• Parties: FREEMAN v. FOSS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 361

14 N.E. 141

FREEMAN v. FOSS.

Supreme Judicial Court of Massachusetts, Suffolk.

November 23, 1887

COUNSEL C.P. Weston, for plaintiff.

The question presented by this bill of exceptions was settled in King v. Welcome, 5 Gray, 41, a case parallel to the one at bar in every essential particular,--a verbal contract for services within the statute of frauds; a part performance only of the terms of service agreed upon; suit upon a quantum meruit for the services actually rendered; the contract set up as a defense. It was there very clearly laid down that a contract within the statute of frauds cannot be made the ground of a defense any more than of a demand. In the language of the court in the Maine case cited below "The obligation of the plaintiff to perform it is no more available to the defendant in the former case, than the obligation of the defendant to perform it would be to the plaintiff in the latter case." This decision has been cited and approved in Williams v. Bemis, 108 Mass 93, and Russell v. Barry, 115 Mass. 303. The following cases and authorities are equally clear to the same effect: Comes v. Lamson, 16 Conn. 246; Bernier v. Manufacturing Co., 71 Me. 506; Browne, St. Frauds, § 118; Wood, St. Frauds, § 276. The ruling requested by the defendant at the end of the bill of exceptions was rightly refused. It asked for a ruling, as in matter of law, upon what was a question of fact, and assumed the existence of facts not proved. Salomon v. Hathaway, 126 Mass 484; Stone v. Sanborn, 104 Mass. 326; Clough v Whitcomb, 105 Mass. 485. The first half of the request was for a ruling that was immaterial to the issue, and the latter half was covered by the ruling already made. It is respectfully submitted that these exceptions were evidently intended for delay, and that they should be overruled, with double costs.

Chas. W. Bartlett and Clinton Gage, for defendant.

The statute of frauds is to be strictly construed, and the party objecting to the use in evidence of a contract as being within the statute must bring such contract clearly within it. If the special contract in this case, otherwise within the statute, was sufficiently performed and executed, then it was competent and admissible for the defendant. Sufficient part performance is enough. Rawson v. Bell, 46 Ga 19; Rosser v. Harris, 48 Ga. 512. And if the performance in this case was partial only, it was, at least, such as is sufficient. But the performance in this case was more than any partial performance; the contract was "fully executed," in the true sense of that expression, up to the time that it was terminated by the parties on January 4, 1886. A contract under which the considerations moving from the respective parties are concurrent, and which is fully executed so far as it goes, so far as the parties act under and elect to receive and accept the mutual benefits of it, is believed on principle to be taken out of the statute as a "fully executed" contract. The closing portion of the court's language in King v. Welcome, 5 Gray, 41, confirms the position here taken: "If a person enters into a verbal contract to labor for more than one year, and quits before the end of the term,...