Pierce v. Estate of Paine.

action shall be maintained upon any agreement not to be performed within the year. It is that portion of the agreement, or the contract sued upon, which comes within the statute, by not being to be performed within the year, and not that portion of the agreement which constitutes the consideration of the promise sued upon. It will make no difference in regard to recovering the price of the consideration, whether it is paid down, or paid within the year, or after the expiration of the year; or whether it is agreed to be paid at one time or another. If it has been paid, so as to go for the benefit of the other party, at any time, and he does not perform the contract on his part, a recovery may be had, but not upon the special contract, if not to be performed in the year, but for the consideration paid or performed by the plaintiff, and which came to the use of the defendant; and this recovery may be had upon the common counts, ' ordinarily, it is presumed. See note to 3 Pick. 95, by Judge PERKINS, citing Lane v. Shackford, 5 N. H. 133; 1 Fairfield 31, and 1 Pick. 328; 3 Wen. 219, and other cases.

But to say that this takes the whole agreement out of the operation of the statute, is virtually disregarding both its terms and all the beneficial objects of its adoption. It is the contract sued upon, which, by its being of older date than one year, exposes to the evils of fraud and perjury. And these evils are none the less because the consideration has been performed within the year. The consideration may be a pepper corn or a thousand dollars; it may be money, labor, goods, or a counter promise, and it may be executed or executory, and the danger of fraud or perjury is not materially increased or diminished. The danger of fraud and perjury is chiefly connected with the proof of that portion of the contract sued, and if that is not to be performed within the year, in our judgment, no action can be sustained upon the contract or agreement, consistently with a fair interpretation of the statute; and this, we think, is the only consistent result of the decided cases upon this point.

The case of Donellan v. Read was where improvements upon premises in the occupancy of a tenant, had been made at his request, upon a contract to pay an increased rent during the remainder of his term, which was more than one year. He enjoyed the

Pierce v. Estate of Paine.

benefit and use of the improvements, and declined to pay for them. The court held the contract not within the statute. This was immaterial to the recovery. The defendant had received the benefit of the improvements, and had agreed to pay £5 for the use annually. This contract was not binding, or could not be sued specially, but a recovery could be had for the use, and that is all this case decides; the declaration containing the count for use and occupation, and the money counts. It is like the case of a contract to demise premises for five years, without writing. No action can be maintained upon the contract. But if the defendant occupy the premises, a recovery may be had for the use and occupation, and the agreed rent may be adopted, as the probable value of the use. So the argument of LITTLEDALE, J., in this case, which seems to have been regarded by him as quite conclusive, is nothing more than saying, if one party, after having received goods or money on a contract, within the statute of frauds, repudiates the contract, he must answer for the money or goods. It is said this case has been reaffirmed in a late case in the Exchequer, Cheney v. Heming, 4 Exch., 631. But as it does not go further than Donellan v. Read, it requires no further answer; it is, indeed, far more questionable than Donellan v. Read. And Holbrook v. Armstrong, 1 Fairfield, 31, which is sometimes referred to upon this point, as confirming the case of Donellan v. Read, is only a recovery for money or goods which came to the defendant's use.

We must then fall back upon the ground quoted from Mr. Wallace's note, and the cases referred to, that no recovery can be had if the contract sued upon was not in writing and not to be performed within one year. And no recovery can be had upon the consideration unless it has come to the defendant's use.

To apply this to the present case, no question is made that the defendant's portion of the contract was not to be performed within the year, inasmuch as one full year was to expire before the plaintiff made his election whether to transfer the stock to the defendant or not, and this was to determine the defendant's obligation. If the plaintiff elected to keep it, he could, and the profits, for that term, were to be divided. If he elected to transfer, the defendant was to pay him the money he had paid out, and interest, and the

Pierce v. Estate of Paine.

profits to be divided between them, the defendant to pay half the advance in price; so that clearly the defendant could not know what was the nature of his obligation till after the year had expired. This is the plaintiff's own version of the facts. The witness, Warner, finally said he thought the defendant guaranteed the stock to be good at the end of the year, or that he would then take it and pay the cost and interest, and half the advance in price, if any. But all the testimony gives one full year before the defendant's obligation attached; of course it could not be performed within the year.

Upon the point whether the payment of the money came to the defendant's use, so that it may be recovered back, it seems very clear to us, that it did not. The plaintiff himself says that he had an election to keep the stock himself, at the end of the year. The stock was not then to become the defendant's till the end of the year, and there is no pretence it ever did become his, so as to vest any title or use in him, unless a proxy may be so regarded, and we think this is no use for which any recovery can be had.

In looking into the cases, the leading case of Peter v. Compton is a full authority to show that it makes no difference as to the binding force of a contract, not to be performed within the year, that it is performed within the year, upon one side. In that case the consideration was paid down. And this case is not questioned, except that incidentally it is said to be limited by Donellan v. Read. But CH. J. TINDALL puts this upon the true ground, in Souch v. Strawbridge, 2 C. B. 808, that there may always be a recovery when there has been full performance on one side, accepted, or which comes to the use of the other. But in the present case nothing came to the defendant's use. So, too, in Broadwell v. Getman, 2 Denio 87, BEARDSLEY, J., fully maintains the ground that if the portion of the contract sued was not to have been performed within the year, no action can be maintained upon the contract, and that to hold the contrary is virtually to disregard the statute. The same is expressly decided in Lapham v. Whipple, 8 Metcalf 59. WILDE, J., says, "To support the action, the plaintiff must prove the contract, and the object of this part of the statute was to prevent the proof of verbal agreements when, from the lapse of time,

Barnes v. Wyethe.

the witness might not recollect the precise terms of the agreement." And in Lockwood v. Barnes, 3 Hill 131, it is said, and has been so held by this court, that a recovery may always be had for performance, or a part performance, on one side, of a contract, within this or any other section of the statute of frauds, if repudiated by the other party, and this part performance came to the use of the other party. But the payment or performance of the consideration of an agreement or contract, within any section of the statute of frauds, never takes it out of the statute; if it were so, no contract upon an executed consideration would ever come within the statute. But in all cases of contracts within the statute, where the promisee has done something towards the performance of the contract on his part, and the other party declines to perform on his part, a recovery of what is thus done may always be had, and this is all that the performance of such contract on one side will avail at law, and this only when such performance on one side enures to the benefit of the other side.

Judgment reversed and case remanded.

HARRIETT BARNES v. JONATHAN WYETHE.

Marriage annulled on account of fraud &c.

A marriage annulled on the ground of fraud, where it appeared that the petitioner was imposed upon, and the marriage brought about by the authorities of the town, to which she was chargeable as a pauper, by their hiring the petitionee, whose settlement was in a different town, to consent to the form of a marriage without afterwards fulfilling or intending to fulfil its obligations, and with no other object except to impose upon the town of his settlement the expense of the petitioner's maintainance.

PETITION FOR A DECREE OF NULLITY of a marriage contract between the petitioner and petitionee. The facts upon which the petition was based, so far as they were sustained by the testimony,

Barnes v. Wyethe.

sufficiently appear in the opinion of the court, which, after argument by

O. H. Smith for the petitoner; and by

Peck & Colby for the petitionee,

was delivered by

REDFIELD, CH. J. We are satisfied, in this case, that the form of marriage was brought about between these parties, chiefly through the instrumentality of certain inhabitants in Moretown, who had the charge of maintaining the town's poor, for the purpose of changing the settlement of the petitioner; and that, to effect this, they promised Wyethe $ 100, and paid him $60; that his purpose was not to contract, in good faith, a marriage, but to get money, and revenge an imaginary grievance against Middlesex, and abandon the petitioner, which he did in about three weeks. She is a cripple, feeble both in body and mind, and was wholly at the disposal of those who had her in charge. It is difficult to lay down any general rule in regard to the precise character of fraud which will render null a marriage contract. But we are reluctant to say, that such a transaction as the present, is to receive the countenance of the courts of the state. It would, we think, be of evil example. The transaction possesses no one feature of a marriage contract, but the ceremony. The cohabitation so long as it continued, seems to have been, on the part of the petitioner, the result of the general imposition; and, on the part of the defendant, a part of the attempted villany. A decree of nullity, if it have no other good effect, (and, as to the parties, it seems to be of no great importance, both being virtual paupers,) will deprive the conspirators of the wages of their iniquity, and be of good example to others. We are not satisfied there was any such duress in the case, as to justify a decree of nullity. But one of the chief actors testifies that he told the petitioner the laws were so altered that the town authority said they had a right to marry paupers to whom they saw fit; and the petitioner testifies that she believed it, and supposed that, if she refused to submit to the marriage, she should be left to starve. is impossible to know how much such badinage might have influenced so simple a creature in the outset; but we are not satisfied she finally acted under the delusion, and still she might have done. Petition granted.

It