Gully v. Grubbs

• Decision Date: 05 May 1829
• Citation: 24 Ky. 387
• Parties: Gully v. Grubbs.
• Court: Kentucky Court of Appeals

24 Ky. 387

Gully v. Grubbs.

Court of Appeals of Kentucky.

May 5, 1829

New Trial. Instructions. Witness, Surprise. Statute of frauds and perjuries.??.

ERROR TO THE MADISON CIRCUIT; GEORGE SHANNON, JUDGE.

Caperton and Goodloe, for plaintiff.

Turner for defendant.

OPINION

ROBERTSON JUDGE:

Higgerson Grubbs sold and conveyed to Elias Gully, fifty acres of land the deed for which acknowledged the receipt (in the usual form) of $150, the consideration.

Several years after the date of the deed, Grubbs brought an action of assumpsit against Gully, for the consideration for the land.

Assumpsit for consideration.

On the general issue, there was a verdict for the defendant. A new trial was granted, on the affidavit of Grubbs, which stated that Crews, a witness summoned by him, and in attendance when the jury was sworn, and by whom he could qrove that Gully had not paid the $150, had unexpectedly disappeared, so that he was deprived of the benefit of his testimony, & c.

Verdict for def't, and new trial upon affidavit of plaintiff.

In a subsequent trial, Grubbs obtained a verdict and judgment for $112, it being proved that $40 had been paid.

Verdict and judgment for plaintiff.

Gully moved for a new trial. The court overruled his motion, to which he excepted. He also excepted to the opinion of the court granting a new trial to Grubbs. The motion for a new trial, by Gully, was based on supposed misinstructions by the court to the jury.

Defendant moved for new trial, and overruled. Exceptions.

In revising the case, three questions are presented to this court.

Questions to be decided.

1st Could Grubbs maintain an action to recover the consideration for the sale of the land, without proving that the assumpsit was in writing; and when too, the assumpsit proved by him was for a payment three years after the contract. In other words, does such a case come within the statute of frauds and perjuries?

2d. Is Grubbs estopped by the acknowledgment in his deed, from proving, by parol, that the $150 had not been paid, but remained due, notwithstanding the deed?

3d. Was it right to award to Grubbs, on his affidavit, a new trial?

On the 1st question, we have no doubt or difficulty. The statute of frauds and perjuries does not apply to such a case as the first branch of this question. The contract of sale was reduced to writing conformably to the statute. It was not necessary that the assumpsit for the price of the land should be in writing. This is not required to be written. Besides, the statute has not been construed to apply to executed contracts. Its expressions are " contracts for the sale of land," & c. Nor as to the other branch, can that part of the statute apply with effect, which provides, that no suit shall be brought on any contract which, by its terms, is not to be performed within one year from its date.

When the contract of sale of land, is in writing, the consideration may be reserved by parol. The statute of fraud, does not apply.

The statute does not vacate such a contract, or declare it to be void. The operation of the act is negative, not positive. It merely declares, that no suit shall be maintained to enforce such a contract. In such case, therefore, as this, a suit could not be prosecuted successfully, on the express contract. This is the only effect of the statute. The party is deprived of the advantage of enforcing his contract. But if the contract be executed on one side, and the case be one from which the law will, " ex aequo et bono, " infer a contract on the other, a suit may be maintained on the implied assumpsit. See Roberts v. Tennell, 3 Monroe, 247. In a suit on the implied promise, proof of the express contract may be admissible for some purposes, although it could not be used as the basis of the action. For instance, as in this case, to show that the suit was or was not brought prematurely. Because, although an action can not be prosecuted on the express parol contract to pay, three years after date; yet on the implied assumpsit, suit should not be brought until after the expiration of the three years; and therefore, for this purpose, and others for instance, to show the amount to be less than that claimed and attempted to be recovered, it would be allowable to prove the express contract.

The action in this case, was well conceived, and was not interdicted by the statute of frauds.

On the 2d proposition, the authorities are not so satisfactory; and therefore, we have not been so clear as on the first. The authorities on this subject in England, as well as in the states of this Union, are various and contradictory. But we believe that the consistent doctrine and that which accords best with analogy, and with the practice and understanding of mankind, is that an acknowledgment in a deed, of the receipt of the consideration, is only prima facie evidence of payment. The acknowledgment is inserted, more for the purpose of showing the actual amount of consideration than its...