Glasgow v. Peatross, 4960
| Decision Date | 22 June 1959 |
| Docket Number | No. 4960,4960 |
| Court | Virginia Supreme Court |
| Parties | WILLIAM J. GLASGOW v. SETH PEATROSS. Record |
James M. Minor, Jr. (William Earle White, Jr., on brief), for the plaintiff in error.
Frank B. Beazley, for the defendant in error.
William J. Glasgow, sometimes hereinafter called the plaintiff, filed a motion for judgment against Seth Peatross, sometimes hereinafter called the defendant, to recover the sum of $1,500, with interest, for money loaned by the plaintiff to the defendant. The defendant filed an answer of general denial. There was a trial before a jury which resulted in a verdict for the defendant. The plaintiff's motion to set aside the verdict as contrary to the law and the evidence was overruled and judgment was entered on the verdict. Within twenty-one days the plaintiff filed a written motion to set aside the verdict and enter a final judgment in his behalf, on the grounds (1) that as his sole defense the defendant had relied upon an oral agreement between the parties which was within the statute of frauds in that it was an agreement not to be performed within a year (Code, § 11-2(7)), and (2) that 'the only legally' sufficient evidence before the court was that the plaintiff had loaned the defendant the sum of $1,500 which had not been repaid. Upon a full argument of the matter the lower court overruled the motion and adhered to its final judgment in favor of the defendant.
The undisputed evidence is that in the winter of 1956-1957 Glasgow went to the home of Peatross, in Caroline county, and requested Peatross to take him into his home and board and care for him. Peatross replied that his home was not suitable to accommodate him (Glasgow) unless and until he (Peatross) had built an additional room and bath on the house. Glasgow agreed to make Peatross a loan of $1,500, or to advance him that amount, for the purpose of making these improvements. Pending completion of the improvements, Glasgow found board and lodging at the home of Mrs. Barlow who lived about eight or ten miles from the Peatross home.
Peatross testified that at the time of the transaction it was verbally agreed that Glasgow was to be boarded at the Peatross home for fifteen months at the sum of $100 per month, and in this manner the amount advanced was to be repaid. On the other hand, Glasgow testified that while there had been some talk between him and Peatross about such an arrangement, no such definite agreement had been reached. He said that it was agreed that he (Glasgow) would have the option of remaining at Mrs. Barlow's home or moving to the Peatross home, and that pursuant to this agreement he had decided to remain at the Barlow home.
At any rate, in May, 1957, Peatross notified Glasgow that the improvements had been completed and that the room and bath were ready for his (Glasgow's) occupancy. Glasgow replied that he preferred to remain at the Barlow home and declined to move to the Peatross home. He then demanded that Peatross execute and deliver to him a note in the sum of $1,500 evidencing the loan. Peatross refused this request, taking the position that because of Glasgow's breach of the contract to come and board with him, he (Peatross) owed him (Glasgow) nothing. Shortly thereafter the present suit was brought.
The case was submitted to the jury upon instructions to which no objections were taken by either side. At the request of the plaintiff the jury were told that if they believed from the evidence that the plaintiff made a loan of $1,500 to the defendant which had not been repaid, then they should find for the plaintiff. They were further told that even if they believed from the evidence that there was an agreement between Glasgow and Peatross whereby Peatross agreed to furnish room and board for Glasgow, and that Glasgow had not breached this agreement, then they should find for the plaintiff, Glasgow.
The defendant's theory of the case was submitted in instruction 'A' which reads thus:
'The court instructs the jury that if you believe from a preponderance of the evidence in this case that the plaintiff and defendant entered into a verbal agreement by which the defendant would make certain repairs and additions to his home and thereafter furnish the plaintiff room and board for a specified sum per month and that the plaintiff advanced the defendant the sum of $1,500 and after said repairs were made the plaintiff refused to move into the defendant's home, then the court tells you that the plaintiff breached his contract, unless the jury further believe that Mr. Peatross later agreed that Mr. Glasgow could stay with Mrs. Barlow and Mr. Glasgow agreed he would stay with Mrs. Barlow, in which event the court tells you Mr. Glasgow did not breach his contract.
'And if you further believe from a preponderance of the evidence that Mr. Glasgow breached his contract, then the plaintiff is not entitled to recover his $1,500 in full and Mr. Peatross is entitled to the sum of $1,500 less a reasonable value of room and board only for a fifteen-month period.'
It is apparent from the verdict that the jury decided the issues of fact in favor of the defendant, Peatross.
The first contention of the plaintiff is that the alleged verbal agreement between the parties is not available to Peatross as a defense because it is within the statute of frauds in that it is an 'agreement that is not to be performed within a year.' (Code, § 11-2(7).) Consequently, it is argued, instruction 'A' is erroneous because it directed the jury to accept the verbal agreement, if proven, as a defense to the plaintiff's claim.
This contention is without merit for it is clear that the agreement was performable by both parties within a year, and hence was not within the statute. According to the weight of authority, the agreement of Peatross to furnish room and board for a fifteen-month period is not within the statute because it is terminable upon the death of Glasgow, an event which might occur within a year. See Thomas v. Armstrong, 86 Va. 323, 326, 10 S.E. 6, 5 L.R.A. 529, Corbin on Contracts, Vol. 2, § 446, pp. 548, 549; 49 Am. Jur., Statute of Frauds, § 30, pp. 391, 392; 50 Am. Jur., Support of Persons, § 4,...
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