White v. Fitts

• Decision Date: 15 December 1906
• Citation: 102 Me. 240,66 A. 533
• Parties: WHITE v. FITTS.
• Court: Maine Supreme Court

66 A. 533

102 Me. 240

WHITE

v. FITTS.

Supreme Judicial Court of Maine.

Dec. 15, 1906.

Exceptions from Supreme Judicial Court, Penobscot County.

Action by Robert H. White against Frank Fitts. Verdict for plaintiff, and defendant moves for a new trial and excepts to the rulings of the court Exceptions sustained.

Action to recover damages for an alleged breach, on the part of the defendant, of an oral contract wherein the plaintiff was to cut and saw into suitable lengths all of the stave wood on a certain lot of land belonging to the defendant. The alleged breach was the refusal on the part of the defendant to allow the plaintiff to continue to cut and saw said stave wood after he had been operating a few weeks. Plea, the general issue, with a brief statement alleging that the agreement was one which was not to be performed within one year from the making thereof, and that there was no memorandum or note of the agreement in writing and signed by the party to be charged therewith or by any person thereunto lawfully authorized.

Tried at the January term, 1906, of the Supreme Judicial Court, Penobscot county. At the conclusion of the evidence, the defendant requested the presiding justice to direct the jury to bring in a verdict for the defendant, on the ground that the contract was within the statute of frauds, and that the action could not be maintained. The presiding justice refused to direct such verdict, but ruled, pro forma, to give progress to the case, that the action was maintainable upon oral evidence. The verdict was for the plaintiff for $500. The defendant then filed a general motion for a new trial. The defendant also excepted to the aforesaid ruling of the presiding justice.

The case appears in the opinion.

Argued before WHITEHOUSE, SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

Martin & Cook, for plaintiff. Charles H. Bartlett, for defendant.

WHITEHOUSE, J. This is an action to recover damages for the breach of an oral contract to cut and saw into logs the stave wood standing on a lot of land owned by the defendant. The breach alleged is the refusal on the part of the defendant to allow the plaintiff to complete the work after he had entered upon the execution of the contract and cut a part of the wood.

In the brief statement of defense, it is alleged: First, that the agreement between the plaintiff and defendant set forth in the plaintiff's declaration was an oral one, which was not to be performed within one year from the making thereof, and that there was no memorandum of the agreement in writing, and signed by the party to be charged therewith; and, second, that the defendant was justified in discharging the plaintiff from the work and terminating the contract by reason of the wasteful and unworkmanlike manner in which the trees were cut and felled and sawed into logs by the plaintiff.

After the introduction of the testimony, the defendant requested the presiding judge to direct a verdict for the defendant, on the ground that the undisputed evidence clearly showed that the contract was within the statute of frauds, because not in writing, and not to be performed within one year, as set forth in the defendant's brief statement, and that the action was therefore not maintainable. The presiding judge declined to order a verdict for the defendant as requested, and ruled, pro forma, that the action was maintainable upon oral evidence.

The jury rendered a verdict for the plaintiff for $500, and the case comes to the law court on exceptions to this ruling of the presiding judge, and also on a motion to set aside the verdict as against the law and the evidence.

In his declaration, the plaintiff avers that "in consideration that the plaintiff promised the defendant to cut timber, suitable for staves, on a certain tract of land of about 380 acres, and saw the same into logs, etc., as fast as the defendant should need the same for use in his mill, the defendant promised the plaintiff to pay him $1 per cord, payable weekly, for cutting all of said timber suitable for staves on said tract, etc.; said timber to be cut and sawed, as aforesaid, as fast as the defendant should need the same for use in his said mill." In the brief statement of defense, it is alleged that the plaintiff and defendant agreed that the plaintiff should enter on the land of the defendant, consisting of 350 acres, and there cut timber suitable for staves, etc., "at the rate of $1 per cord, as fast as the defendant should need the same for use in his mill situate on the land."

Thus it will be perceived that, according to the pleadings of the parties, there was no controversy in regard to the terms of the contract, and the evidence is in entire accord with these allegations in the pleadings. It was undisputed that the plaintiff was to cut down and saw into the desired lengths all of the standing timber on the 350 acres of defendant's timber land, as fast as the defendant needed it for use in his mill. There were no specifications and no further stipulations in regard to the time within which the work was to be completed and the contract performed.

The provision of the statute for the prevention of frauds and perjuries here involved is found in chapter 113 of the Revised Statutes (section 1), as follows: "No action shall be maintained * * * (5) 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," etc.

It is contended in behalf of the defendant that, according to the principles of law governing the construction and application of this clause of the statute: (1) The contract must be interpreted in the light of its subject-matter and the circumstances surrounding it, and, if the manifest intent and understanding of the parties thereto are that it was not to be performed within the year, it falls within this clause of the statute of frauds. (2) Any contingency terminating a contract within the one-year clause of the statute of frauds must leave the contract fully and completely performed in order to take it out of the operation of this clause of the statute.

In Brown on the Statute of Frauds (5th Ed.) §§ 273, 279, 281, the author says:

"Postponing the questions, what is the performance of such an agreement, and what the meaning of the limitation as to time, we are first to ascertain the force of the words 'to be performed.' And on these words much reasoning has been expended. 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."

"The statute, finding them perfectly free to make a certain contract, without a writing, provides simply that if that contract does by its terms, expressed, or, from the situation of the parties, reasonably implied, require more than a year for its performance, they must put it in writing. In other words, it must affirmatively appear from the contract itself, and all the circumstances that enter into the interpretation of it, that it cannot in law be performed within the space of a year from the making."

And, in section 281: "Where the manifest intent and understanding of the parties, as gathered from the words used and the circumstances existing at the time, are that the contract shall not be executed within the year, the mere fact that it is possible that the thing to be done may be done within the year, will not prevent the statute from applying. * * * Such an accomplishment must be an execution of the contract according to the understanding of the parties."

In 1 Chitty on Cont. (11th Ed.) p. 99, the principle is thus stated: "This enactment applies to all contracts, the complete performance whereof is of necessity to extend beyond the space of a year; the rule being that, where the agreement distinctly shows, upon the face of it, that the parties contemplated its performance to extend over a longer period than one year, the case is within the statute. Accordingly, the provisions of the statute render a verbal contract void, if it appears to have been the understanding of the parties at the time that it was not to be completed within a year, although it might be, and was, in fact, in part performed within that period." See, also, A. & E. Encyc. of Law, vol. 29, p. 94, and Cyc. vol. 20, p. 198.

In the English case of Boydell v. Drummond, 11 East, 142, the plaintiff proposed to publish a series of illustrated scenes from Shakespeare in eighteen numbers; one number at least annually. After receiving two numbers, the defendant refused to take any more. Although there was no express agreement that the contract should not be performed within a year, the court held that it was "impossible to say that the parties contemplated that the work was to he performed within a year"; but that, on the contrary, "the whole scope of the undertaking shows that it was not to be performed within a year, and was therefore within the statute of frauds." That decision has been confirmed by both English and American courts in numerous cases. Hill v. Hooper, 1 Gray (Mass.) 131.

In Peters v. Westbourough, 19 Pick. (Mass.) 364, 31 Am. Dec. 112, the court say: "It must have been expressly stipulated by the parties, or...