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Hassams v. Dompier.

On the trial, the court excluded the evidence offered for the purpose of showing a partial failure of consideration for the note ; and the offer was, to show that the note was given, in part, for the purchase of a piece of land, which was conveyed to the defendant by a deed of warranty, and that there was an outstanding mortgage upon it, at the time, which the defendant has since paid off. We are to take the decision as made upon the offer of the defendant. The offer is not to show a recission of the contract, for the defendant still retains the land conveyed him, and the covenants in his deed; and the failure of consideration, at most, can only be claimed to be partial. It is not necessary to inquire what would be our decision, in a case where there had been an entire failure of consideration by an eviction, by an elder and better title. It might, in such a case, well be inquired whether the party should not be remitted to his remedy on the covenants in his deed to insure the title, though the cases on this point are not in unison ; but this is a case where the land itself only constituted a part of the consideration for the note, and for what part does not appear in the case; and the failure of title has been only partial. The equity of redemption was in the plaintiffs, and that was fully conveyed.

It is well settled, in this state, that, in an action upon a note, evidence to show a fraud, which partially affects the consideration of the note only, is not admissible to reduce the damages. Stone v. Peake, 16 Vt. 218. Burton v. Schermerhorn, 21 Vt. 289. The sum which the defendant could claim should be deducted, in this case, is matter of liquidation, and not of computation. It does not appear from the offer of the defendant, that any distinct and seperate valuation was put upon the land, as making up a part of the consideration for the note,; and the value of the equity of redemption, which was conveyed, was a matter of liquidation from the testimony of witnesses.

In the present case, there is no ingredient of fraud. The defendant is chargeable with constructive notice of the incumberance, and there has been no eviction. It does not appear from the offer, that the mortgagee took any measures to enforce the collection of his debt. In such a case as this, we are all clear that the offer of proof, as made, was properly overruled. The case of Greenleaf v. Cook, 2 Wheaton 13, is in point. See also Lloyd v. Jewell,

Pierce v. Estate of Paine.

1 Greenleaf, 352; 3 Fairfield, 127; 2 Kent's Com. Sec. 39, part 5, page 471, 472, and cases there cited. Barkhamsted v. Case 5, Conn. 528.

Judgment affirmed.

GEORGE B. PIERCE v. The Estate Of CHARLES PAINE.

Statute of frauds. Agreement not to be performed within one year.

If the agreement, for the non-performance of which an action is brought, was not to be performed within one year, no recovery can be had upon it, although that which formed the consideration of the agreement was to have been, and was paid or performed within that period; and no recovery can be had for or upon the consideration so paid or performed, unless it enured to the benefit of the defendant.

Application of this principle to the present case.

ASSUMPSIT. The allegations in the declaration do not appear in any papers in the possession of the reporter, except so far as they are stated in the opinion of the court. Plea, the general issue; trial by jury, September Term, 1855,-POLAND, J., presiding.

The plaintiff testified that he was a stockholder in the Vermont Central Railroad Company, and by the rules of the company, established at the time they issued a new stock, at fifty cents on the dollar, he was entitled to take more than fifty shares of said fifty per cent issue, but that before the time limited for the stockholders to take the fifty per cent stock had expired, he had determined not to subscribe, and so informed the testator, whereupon he asked the plaintiff if he might have the benefit of his subscription, to which the plaintiff replied that he might; that a day or two after this he inquired of the plaintiff if he had subscribed for the stock, and he replied that he had not; that the testator thereupon told the plaintiff to subscribe for fifty shares of said fifty per cent stock, and pay for the same, and at the end of a year he would pay to the plaintiff his money back and interest thereon at any

Pierce v. Estate of Paine.

rate, and, if the stock rose, would divide the profits on it with the plaintiff; and that if, at the end of the year, the plaintiff should prefer to keep the stock rather than have it disposed of, he should have the privilege of doing so, and the profits should be determined by the then market price; that the plaintiff acceded to these proposals, and William Warner, the then treasurer of the railroad company, was called on to witness the arrangement; and that the next day the plaintiff went to the treasurer's office, and in pursuance of said arrangement, subscribed for fifty shares of said stock, and paid the first installment thereon, of $750, and, in September and December following, paid the installments as they fell due, amounting in all to the sum of $1,500. The plaintiff took certificates of the stock in his own name when he subscribed, and the payments were endorsed thereon.

The plaintiff also testified that he gave proxies of this stock by the direction of Paine, for the purpose of voting in the meetings of the company.

The plaintiff also read a deposition of Wm. Warner, the substance of whose testimony is sufficiently stated in the opinion of. the court. The defendant introduced no evidence, and claimed, among other things, that the plaintiff could not recover because the contract was within the statute of frauds; but the court decided otherwise, and, as the defendant did not controvert any of the facts stated by the plaintiff, directed a verdict for the plaintiff. Exceptions by the defendant.

T. P. Redfield for the defendant. One year was to elapse before any promise or duty assumed by the testator was to be performed.

If part of the contract is to be performed within one year, and part afterwards; see Foot et al. v. Emerson, 10 Vt. 338; Hinckley v. Southgate, 11 Vt. 428.

If the agreement be wholly performed by one party, leaving stipulations to be performed by the other party; see the opinion of Lord Ellenborough, in Boydell v. Drummond, 11 East 159; 1 Smith's L. C. 317–18; Bracegirdle v. Heald, 1 B. & A. 722.

A verbal contract to work two years, and partly executed, is within the statute of frauds. Drummond v. Burrell, 13 Wen. 307,

Pierce o. Estate of Paine.

An action cannot be sustained on a verbal promise to return the money paid on the purchase of a patent right, if the plaintiff did not within three years realize $1000, profits. Lapham v. Whipple, 8 Met. 54. Henning v. Butlers, 20 Maine 119; 2 Steph. N. P. 1977. See also the case of Manor v. Pyne, 12 C. L. R. 43; Broadwell v. Getman, 2 Denio 87; Foot et al. v. Emerson, 10 Vt. 338; Hinckley v. Southgate, 11 do. 428; Squier v. Whipple, 1 Vt. 69; Boydell v. Drummond, 11 East 142; Smith's Leading Cases 316-17-18.

Vail and Peck & Colby for the plaintiff.

The provision in the statute of frauds, relied upon by the defendant, applies only to those contracts which are not to be performed, on either side, within one year. It does not reach a case where the contract is to be executed, on one side, within the year.

The case is not within the statute. Donellan v. Read, 3 Barn. & Adol. 899; 23 Com. Law 215.

The opinion of the court was delivered by

REDFIELD, CH. J. This is an action of assumpsit upon a promise to pay the plaintiff the money paid out, and interest, if he would subscribe for fifty shares in the stock of the Vermont Central Railroad Company, and pay the amount of them, as the assessments fell due, which was within one year, if, after one year, the plaintiff should elect not to keep them, but to transfer them to the defendant. And if the plaintiff did then elect to keep them, and they were above par, he was to pay the defendant half theadvance. It is claimed, on the part of the defendant, that this is a contract within the statute of frauds, as not to be performed within the year from its date, and not being in writing.

And it is replied to this, that, as it was to be performed, upon one side, within the year, that takes it out of the operation of this portion of the statute, and the case of Donellan v. Read, 3 Barn. & Adol. 899, 23 Eng. C. L. R. 215, is relied upon. There can be no doubt such a doctrine is declared in this case; but it is severely questioned by Smith, in his Leading Cases, 1 vol. p. 145, et seq.; and in the American note it is said, that it has been generally held, in this country, “ that it (the statute] applies in all cases where the

Pierce v..Estate of Paine.

obligation or duty sought to be enforced, could not have been fulfilled within the year, and that an oral promise for the payment of money, or the performance of any other act, at a greater distance of time than one year, is conseqnently invalid, whether made upon an executed or executory consideration," citing Cabot v. Haskins, 3 Pick. 83; Lockwood v. Barnes, 3 Hill 128; Boardwell v. Getman, 2 Denio 87.

And the chief difference between the case of Donellan v. Read and the other cases is, that in the former case it is laid down that if one party is to perform and does perform all of his part of the contract, that takes the case out of the statute; and in the American cases cited, and in one late English case, Souch v. Strawbridge, 2 C. B. 808, by TINDALL, Ch. J., it is said that to entitle the party to recover on his part-performance within the year, when the other

that the performance, on the part of the plaintiff, was accepted on the other side, or that it went to the benefit of the other side. And just here it seems to us comes the proper distinction,

If the contract has been performed on one side, in such a man-) ner that the performance goes to the benefit of the other party, whether this was done within the year or not, it undoubtedly lays the foundation of a recovery against the party benefited by such performance. But when the contract, on the part of this party, was not to be performed within one year from the time it was made, the recovery is not upon the contract, but upon the quantum meruit or valebat, or upon the money counts. It is a recovery back of the consideration of a contract upon which no action will lie, / and which has been repudiated by the other party.

And in the present case, if the plaintiff could be treated as the mere agent of the defendant, in making this subscription and payment of money, and the stock as being the defendant's stock, standing in the name of the plaintiff, there would certainly be no difficulty in the plaintiff recovering the money and interest. And this is the view taken of the plaintiff's case by the learned counsel on his behalf, and it is the only ground upon which it seems to us the action can be maintained, consistently with a fair and reasonable construction of the statute. For the statute is explicit, that no

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