Kendall v. Garneau

• Decision Date: 09 June 1898
• Parties: KENDALL v. GARNEAU.
• Court: Nebraska Supreme Court

55 Neb. 403

75 N.W. 852

KENDALL

v.GARNEAU.

Supreme Court of Nebraska.

June 9, 1898.

Syllabus by the Court.

1. When the legislature, in a statute, employs language which has elsewhere received a fairly well settled construction, it will be presumed that such construction was in the contemplation of the legislature, and expresses the true meaning.

2. That portion of our statute of frauds which brings within its inhibition verbal or unsubscribed agreements which, by their terms, are not to be performed within one year from the time of making, does not extend to agreements wholly performed on one side within the year.

3. Whether there is ground for a distinction between executory contracts contemplating performance on one side within a year, and contracts actually executed on one side within that time,--quære.

4. The grantee in a deed, although he does not subscribe the same, is bound by a covenant to pay a mortgage not due for more than a year after the delivery of the deed. Ragan, C., dissenting.

5. The parties had stipulated that, if a judgment for the defendant should be reversed, this court should render judgment for a stipulated amount in favor of plaintiff. It being made to appear that subsequent proceedings had been had which might, in whole or in part, avoid the obligations of the stipulation, the court refused to enter judgment according to the stipulation, and remanded the case, that the district court might hear and determine the questions so suggested.

Error to district court, Douglas county; Blair, Judge.

Action by Burney J. Kendall against Joseph Garneau, Jr. From a judgment sustaining a demurrer to the petition, plaintiff brings error. Reversed.Albert Swartzlander, for plaintiff in error.

J. W. West, for defendant in error.

IRVINE, C.

Kendall, in his amended petition against Garneau, alleged that December 11, 1890, the Patrick Land Company sold and conveyed to Charles F. Mullin, 24 lots of land, and that to secure the purchase money Mullin that day made and delivered to the land company his 24 promissory notes, each payable December 11, 1893, each for $600, and each secured by a mortgage on one of the lots; that these notes had become the property of the plaintiff; that February 23, 1891, Mullin conveyed said lots to Garneau by deed poll, incorporated in the petition, containing the following covenant: “Subject to incumbrances amounting to $14,400, which the said Joseph Garneau, Junior, hereby assumes and agrees to pay, and the interest thereon from December 11, 1890.” It was further alleged that the incumbrances mentioned in said covenant were the mortgages securing plaintiff's notes, and that said notes were due and unpaid. Judgment was prayed for their amount. A general demurrer to this petition was sustained, and a judgment of dismissal entered.

It will be observed that the notes were not payable for more than one year after the conveyance to Garneau, and that that deed was not subscribed by the grantee. The question raised by the demurrer is whether such a transaction is within the first subdivision of section 8, c. 32, Comp. St., which provides: “In the following cases every agreement shall be void unless such agreement, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged therewith: First. Every agreement that by its terms is not to be performed within one year from the making thereof.” It is contended that the liability of the grantee under similar circumstances has been settled by repeated adjudications. An examination of the cases will disclose that the propositions so far decided have been that a third person for whose benefit a promise is made may sue thereon, although he be not a party to the consideration; and that such a promise is a principal undertaking, and so not within that provision of the statute of frauds which requires a writing in order to charge one on a promise to answer for the debt, default, or misdoings of another. In some cases it affirmatively appears that the debt became due, or that it was in terms payable, within the year. In only one does the contrary appear, and in none has the provision we are now called upon to consider been invoked, or its application considered. In ascertaining whether this provision applies, the determining question is whether the statute contemplates an agreement which, by its terms, is not to be completed within the year, or only those which are not to be performed on either side within that period. If the latter, it is not here applicable, because the conveyance was made at once, and only payment by the promisor was postponed beyond the year. Were we at liberty to base our construction upon what seems the natural and ordinary meaning of the language employed, the solution ought not to be difficult. As stated by Lord Ellenborough in Boydell v. Drummond, 11 East, 142, “performed” means completely performed. It means done; not begun, or half done. The policy of the statute was to prevent the evidence of such contracts from resting on the uncertain memory of witnesses for so long a time. A half performance would not satisfy this object. But the language of the statute is not altogether certain, and we have, from another rule of construction, a guide to the intent of the legislature. Our statute was first enacted in 1856. Sess. Laws 1856, c. 33. It was re-enacted in 1864. Sess. Laws 1864, p. 70. From its closely following in the main the statute of Charles II., and from the changing of some words which had created difficulty in the construction of that statute, and the addition of certain sections rendering explicit matters which were left by the English statute in doubt, it is quite evident that it was carefully prepared, with a view to the many decisions construing the original act and the earlier American acts founded thereon. If the words used had at the time received a settled construction, we must presume that the legislature adopted them in that sense. Boydell v. Drummond was decided in 1809. One of the questions in that case was whether an agreement was within the statute if its performance was to be commenced on both sides within the year. The court held that it was. To the writer's mind, the reasons for holding that a part performance does not take the case out of the statute apply with equal force to a contract wholly performed on one side, but unperformed on the other. Nevertheless, it was in the course of the argument suggested by Lord Ellenborough that, if there was complete performance on one side, and nothing remitted beyond the year except payment of the consideration, the statute would not apply. This chance suggestion in argument of an idea apparently removed by final consideration of the case, was seized upon later, and made the basis of one or more obiter...