Kimmins v. Oldham.

• Decision Date: 05 December 1885
• Citation: 27 W.Va. 258
• Court: West Virginia Supreme Court
• Parties: Kimmins v. Oldham.

27 W.Va. 258

Kimmins

v.Oldham.

Supreme Court of Appeals of West Virginia.

Submitted September 9, 1885.

Decided December-5, 1885.

1. The seventh clause of our statute of frauds ch. 98 of Code (iocs not include an agreement, which is simply not likely to be performed, nor yet one, which is merely expected to be performed, within the space of a year; but it does include any agreement, which by a fair and reasonable interpretation of the terms used by the parties and in view of all the circumstances existing at the time does not admit of performance according to its language ami Intention within a year from the time of its making, (p. 262.)

2. It is well settled, that courts of equity will notwithstanding tin1statute of frauds enforce oral contracts for the sale of land which have been partially performed; and when the failure to complete the contract would operate as a fraud, such courts may exercise a similar jurisdiction with regard to chattels; but courts of law will not enforce such contracts contrary to the provisions of the statute, (p. 264. j

3. But it is a general rule, that where one has rendered services, paid a consideration, or sold and delivered goods in execution of an oral contract, which on account of the statute can not be enforced against the other party, such one can in a court of law recover the value of the services or of the goods upon a quantum meruit or valebant, (p. 265.)

4. This general rule, however, is limited and confined to cases, in which the services rendered, the goods delivered or consideration paid inured to the benefit of the defendant; and in such cases the recovery is not upon the contract but upon the quantum meruit or valebant or upon the money counts. vp. 265.)

5. A plaintiff and defendant with others borrow money foracorporaction, of which they are stockholders, and give their negotiable notes therefor payable at four months, on which their names appear indifferently as makers and endorsers, upon the expectation, that the corporation will pay the money borrowed, and with the verbal agreement among themselves, that in case the corporation fails to pay the money, and any of them has it to pay or pays it, the others will refund to him their equal proportion of the sum paitl; subsequently the notes thus given are consolidated into one note payable one year after date, upon which the plaintiff is maker and the defendant and others are endorsers; this note after its maturity is paid oft* by the plaintiff, and be brings his action against the defendant for his proportionate part of the money so paid by him, Held:

I. That the making of the consolidated note operated not only as a renewal of the obligation to the creditor but impliedly as a renewal and continuance of the verbal agreement between t be maker and endorsers modified so far only as to make it correspond with the date and terms of the new note;

II. The new note being by its terms incapable of performance within a year from its date; and the verbal agreement, being likewise incapable of performance within the year, it is inoperative and void under the statute of frauds; HI, The payment by the plaintiff inuring to the benefit of the corporation and not the defendant, the plaintiff is not entitled to recover for money paid from the defendant, (p. 266.)

trame Holt for plaintiff in error. W. P. Hubbard for defendant in error. Snyder, Judge:

Action of assumpsit brought March 13, 1884, in the circuit court ot Ohio county by Andrew H. Kimmins against James IT. Oldham. The defendant pleaded non-assumpsit and the statute of limitations. On the issues upon these pleas the case was tried by jury and a verdict found in favor of the plaintiff tor $490.20, on which the court, February 5, 1885, entered judgment. The defendant moved the court to set aside the verdict and grant him a new trial which motion being overruled the defendant excepted and brought the case before this Court by writ of error.

During the trial several hills of exceptions were taken by the plaintiff in error, in one of which all the evidence is certified. The declaration consists ot the common counts only and was accompanied by a bill of particulars in these words kv James H. Oldham,

To Andrew II Kimmiiis, Dr.

March 26, 1882. To cash paid for you to William Bailey, $612.50, being one fourth of the principal, interest and costs paid by me to William Bailey in satisfaction of a loan for $1,645.86 made by said Bailey to you, F. M. Henderson, dames Orr and myself, and evidenced by a note dated November 12, 1875, for $1,645.86, at one year, held by said Bailey, which note was made by me and endorsed by you, F. M. Henderson and James Orr, upon an agreement that you, F. M. Henderson, dames Orr and myself should be jointly liable therefor, upon which note you, F. M. Henderson and James Orr waived protest, demand and notice."

The tacts of the case as disclosed by the evidence, so far as it is material to state them, are as follows:

The Honey's Point and West Union Turnpike Company was incorporated by an act of the Legislature of this State in 1870, ch. 70, Acts 1870, p. 75. The plaintiff, the defendant, James Orr and F. M. Henderson became stockholders in, and menbers ot the finance committee ot, said company. While the building and construction of said turnpike was in progress, the company became pressed for money to pay the contractors who were making the road by reason of the delay and neglect of some of the stockholders to pay their subscriptions promptly. In order to satisfy and pay the contractors and to gain time to collect the money from delinquent stockholders or persons who had subscribed for the building of the road, the four persons mentioned, that is the plaintiff, the defendant, Orr and Henderson in the years 1871 and 1872, borrowed money for the purpose aforesaid from William Bailey through his agent, Forbes, and gave their personal notes therefor, Forbes being unwilling to loan on the notes of the company. Some of the notes thus given were signed by one of the parties as maker and some by others, but all of them were negotiable and signed by one or the other as maker and endorsed by all the others. Neither one washing to make himself liable further than the others, they made a parol agreement among themselves that, regardless of the relation they might occupy upon the notes, they were to be equally liable in the event the notes were not paid by the company. These notes were all payable at four and six months from date. Subsequently, three of these notes, one for $525.00, one for $547.56 and one for $598.00, all dated in 1871 and 1872, were consolidated and merged into the note of November 12, 1875, mentioned in the plaintiff's bill of particulars. The detendant's name appeared on the last of said three notes as an endorser but it did not appear in any manner on either of the two other notes. The evidence tended to prove that the parties made the said note ot Novvember 12, 1875, upon the same agreement as to their joint liability, that existed among them as to the original notes, but the defendant was not present when said note was made, he signed it as endorser a few days afterwards. The plaintiff on March 26, 1882, gave his note to Bailey for $2,450.00 in satisfaction of the said note of November 12, 1875, and its interest, and soon after paid the said note ot $2,450.00. The said note ot November 12, 1875, has upon it a waiver of notice of protest signed by all the parties. The note is in these words:

" Wheeling, W. Va., Nov. 12th, 1875. "One year after date, I promise to pay to the order of F. M. Henderson, sixteen hundred and forty-five dollars and eighty-six cents, value received, negotiable and payable at the Exchange Bank of Wheeling, with interest from date."* $1,645.86. A. H. Kimmtns.

Eendorsed. P. M. Henderson, James H. Oldham, James Orr."

The plaintiff bases his right of action upon the fact that he paid off and satisfied this note and the verbal agreement aforesaid that the parties should contribute an equal portion to the payment thereof in the event, the Turnpike Company or its stockholders failed to pay it. The defendant to defeat any recovery against him relies upon the secenth clause of the statute of frauds which is as follows:

"No action shall be brought in any of the following cases:

***** Seventhly. Upon any agreement that is not to be performed within a year; unless the 1 * * agreement, * * * or some memorandum or note thereof be in writing and signed by the party to be charged thereby or his agent." Oh"98, Code p. 535.

Brown on the Statute of Frauds, sec. 273, in reference to the words "to be performed" used in the statute, says: "The result seems to be that the statute does not mean to include an agreement which is simply not likely to be performed, nor yet one which is simply not expected, to be performed within the space of a year from the making; but that it means to include any agreement which by a fair and reasonable interpretation of the terms used by the parties, and in view of all the circumstances existing at the time, does not admit of performance according to its language and intention, within a year from the time of its making.'*

There are many nice distintions drawn in the decided cases as to what particular agreements or contracts should be included or excluded from the operation of the statute which it is not necessary to notice in this case. It will be sufficient for our present purposes to quote portions of sees. 78 and 79 ot the same author in which he says: "An agreement, in general terms, to do a particular act, no time being specified, and the act being such as may be performed by the party promising, under the contract, within a year, is saved from the operation of the statute. * * * It is very clear that it is immaterial, upon the question of the application of the statute to a contract, that it has or has not been performed within the year. * * * The statute finding the parties perfectly free to make...