Montague v. Garnett

• Court: Kentucky Court of Appeals
• Writing for the Court: WILLIAMS, JUDGE.
• Citation: Montague v. Garnett, 66 Ky. 297 (Ky. Ct. App. 1867)
• Decision Date: 15 February 1867
• Parties: Montague v. Garnett.

66 Ky. 297

Montague v. Garnett.

Court of Appeals of Kentucky.

February 15, 1867

1. G loaned M. corn and pork, which M. verbally agreed to return at the expiration of three years. No suit can be maintained to enforce this contract; but a suit can be maintained to enforce the implied promise, created by law, to pay for the consideration received--neither the letter nor the spirit of the statute prohibits a suit to recover on this implied obligation of the law.

2. Verbal contracts, not to be performed within a year, are not declared by the statute to be void, but only that suit for their enforcement shall not be maintained.

3. In verbal contracts, not to be performed within a year, there is, under the statute against frauds and perjuries, a distinction between contracts executed in part or wholly, and one to be wholly executed by both parties. (Roberts vs Tennell, 3 B. Mon., 252.) Whilst the implied promise, created by law, to pay for the consideration received in such contracts can be enforced, no suit can be maintained to enforce the contract itself. Yet the contract is available in behalf of the defendant, and he may protect himself against suit until the expiration of the time, and can use it for the purpose of reducing the amount of his liability under the implied promise created by law.

APPEAL FROM OWEN CIRCUIT COURT.

G. W CRADDOCK, For Appellant,

CITED--

Revised Statutes, chap. 22, 1 Stanton, 264.

3 Mon., 252; Roberts vs. Tennell.

4 B. Mon., 415; Halloway vs. Hampton.

6 B. Mon., 17; Sanders vs. Kastenbine's ex'r.

9 B. Mon., 428; Davenport vs. Gentry's adm'r.

Chitty on Contracts, ed'n 1848, p. 67.

15 B. Mon., 446, and cases cited.

Civil Code, section 123.

13 B. Mon., 466; Fible vs. Caplinger.

MSS. Opin., Goddard vs. Maddox.

GROVER & DUVALL, For Appellee,

CITED--

3 Mon., 247; Roberts vs. Tennell.

OPINION

WILLIAMS JUDGE.

Garnett leased Montague his farm for three years from January 1, 1861, until January 1, 1864, and, at the same time, verbally loaned him one hundred barrels of corn and three thousand three hundred and sixty pounds of pork, to be returned at the expiration of the lease. The corn and pork not being returned, Garnett sued and recovered judgment for their value, from which Montague appealed.

It is insisted that this was a verbal contract, not to be performed within a year, and, therefore, no recovery can be had because of the statute against frauds and perjuries.

There is evidently a distinction between contracts executed in part or whole, and one wholly to be executed by both parties, under said statute, as was said by this court in Roberts vs. Tennell, 3 Monroe, 347; and, as therein said, the statute does not declare such contracts void, but only that suit for their enforcement cannot be maintained.

Where a contract is wholly executory on both sides, as neither could bring a suit for its enforcement, the legal effect would be the same as though the contract had been declared void; but this is not the effect of the statute where there has been an execution of the contract, in part or whole, by one party for, in such cases, the law implies a contract to pay for the consideration received; and neither the letter nor spirit of the statute prohibits a suit to recover on this implied...