Hearne v. Chadbourne

• Decision Date: 08 September 1876
• Citation: 65 Me. 302
• Parties: ALONZO HEARNE v. OWEN B. CHADBOURNE, appellant.
• Court: Maine Supreme Court

65 Me. 302

ALONZO HEARNE v. OWEN B. CHADBOURNE, appellant.

Supreme Judicial Court of Maine.

September 8, 1876

1875.

ON EXCEPTIONS.

ASSUMPSIT for wages.

The action was referred in this court to a referee to be determined upon legal principles, who at the September term thereof, 1874, made report " that upon Friday, March 7 1873, the parties agreed that Hearne should work for Chadbourne one year at the rate of nine dollars a week; that the plaintiff had previously worked for the defendant at eight dollars a week without any agreement to remain any definite time; that for the week's work, ending with Saturday, March 8, 1873, the parties settled at the old rate of eight dollars per week, and for the succeeding weeks they settled at nine dollars per week (so far as any settlement was had), commencing to credit Hearne for his work at this rate on and after Monday, March 10, 1873. Hearne continued to work for Chadbourne till May 19, 1873, when he left. If the agreement to work for one year was legally binding, or if the effect and construction to be given that contract is that the year commenced with Friday March 7, 1873, then I find that nothing is due the plaintiff, because I find that he broke that contract, and thereby the defendant suffered much greater damage than all the labor rendered by the plaintiff was worth; but if the true interpretation of the language and acts of the parties is, that the year was not to commence till Monday, March 10, 1873, and the contract was therefore invalid under the statute of frauds, then I find that the plaintiff is entitled to have and recover of the defendant the sum of twenty-eight dollars and sixty cents and the costs of this reference taxed at five dollars, together with the costs of court to be taxed by the court and the costs awarded in the Biddeford municipal court; but as the parties have desired the cause to be determined upon legal principles I refer to the court the question of the true construction and legal effect of the transaction between the parties."

Upon the report, the presiding justice ordered judgment for the plaintiff, and the defendant excepted.

R. P Tapley, for the defendant.

The plaintiff seeks to avoid his contract under the provisions of the statute of frauds which provides that " no action shall be maintained … upon any agreement that is not to be performed within one year from the making thereof …. unless the promise, contract or agreement on which such action is brought or some memorandum or note thereof is in writing and signed by the party to be charged therewith." R. S., c. 111, § 1, cl. 5.

I. To bring the case within the statute it must affirmatively appear that the contract was " not to be performed within one year from the making thereof." It is not enough that it may or may not be performed within the year if it is susceptible of performance within the year the statute does not attach. Brown on Statute of Frauds, c. 13, §§ 273, 278 A 279.

Our own courts say: " This clause of the statute has been limited to cases where, by the express terms of the agreement, the contract was not to be performed within a year."

The supreme court of errors in Connecticut say that unless it appears that the agreement is not to be performed until after the expiration of a year it need not be in writing. Russell v. Slade, 12 Conn. 445. Clark v. Pendleton, 20 Conn. 495

II. It must affirmatively appear, from the agreement itself, that it was not to be performed within a year.

Subsequent modifications will not relate back. If the contract does not provide that it is not to be performed in a year, it is not within the statute whatever may have been the expectation of the parties. Russell v. Slade, ubi supra. Moore v. Fox, 10 Johns. 244, where the court cite Lower v. Winter, 7 Cow. 263; and McLees v. Hale, 10 Wend. 426; and remark that Boydell v. Drummond, 11 East. 142, does not conflict with these authorities but proceeds upon the same principle.

In Peters v. Westborough, 19 Pick. 364, the court say: " But this clause of the statute extends only to such agreements as, by the express appointment of the parties, are not to be performed within a year. If an agreement be capable of being performed within a year from the making thereof, it is not within the statute, although it be not actually performed till after that period."

In Lyon v. King, 11 Metc. 411, a construction of the statute was sought and the previous decisions of the court were referred to as presenting the views of the court including the case of Peters v. Westborough, which was eo nomine sustained and the case under consideration sustained upon it.

The case of Doyle v. Dixon, 97 Mass. 208, recognizes Peters v. Westborough as authority, thus bringing the construction found in that case down to a very late period of time.

In the case of Linscott v. McIntire, 15 Me. 201, it is said by our court: " This clause of the statute has been limited to cases where, by the express terms of the agreement, the contract was not to be performed within the space of a year."

In Herrin v. Butters, 20 Me. 119, the court say: " We must look to the contract itself and see what he was bound to do; and what, according to the terms of the contract, it was the understanding that he should do."

III. An agreement to labor for a year is not within the statute. This is expressly decided in Russell v. Slade, before cited.

" In Williams v. Jones, 5 Barn. & Cress., 108, an attorney had entered into a written contract, whereby he agreed to take into partnership in the business of an attorney a person who had not at that time been admitted. No time was expressly fixed for the commencement of the partnership. And it was held, that no time being expressly appointed the partnership commenced from the date of the agreement." Holroyd, J., in that case said: " Whatever may have been the intent of the parties which I collect to have been that the...