M'Lees v. Hale & Bowen

such an one as, by the express appointment of the parties, the thing is not to be performed within a year ; that it does not embrace cases where the thing only may be performed within the year. This court have adopted the same construction in Moore v. Fox, 10 Johns. 11 . 244, where it is said that, to bring the case within the statute of frauds, there must be an express and specific agreement not to be performed within the space of a year-; and if the thing may be performed within the year, it is not within the act. In that case, Moore had promised Fox to pay him $2 a year for his services as a minister ; he had paid it for about four years, in half yearly payments, and had refused for about two years, for which the action was brought and a recovery had before a justice. The court held that that promise was to be performed according and in proportion to the service rendered, and that it did not appear but that it was to be performed within a year. The case before the court seems to me to be analogous. The payment was to be made weekly; it appeared, therefore, not only that the agreement was not one which was not to be performed within a year, but that it was necessarily to be performed within a year, to wit, at the expiration of every week. In Lown v. Winters, 7 Cowen, 364, the agreement was made in January or February, 1824, to pay $100 in March, 1825, which was more than a year ; there the payment could not be made within the year, and was adjudged to be within the statute and void. The case of Fenton v. Emblers appears to me to be stronger than this. The agreement was in consideration that the plaintiff would become the house-keeper of the defendant’s testator, and continue as long as the parties pleased; he would pay her at and after the rate of £6 per year, and by his last will give her an annuity of £16 per year. But it might have been done within a year. In this case, as I have already remarked, the agreement was to be performed within the year. Had it been that the plaintiff should keep the child five years and then receive his pay, the contract would have been clearly void. Here the agreement was that the plaintiff was to support the child until five or six years old, or as long as it should be chargeable, and the defendant was to pay seventy-five cents a week, and, if the plaintiff wished it,

might have his pay every week. Here was also a contingency ; the child might not continue chargeable for a year or a month. It was a contract to be performed immediately and constantly, the utmost limit of which was six years; and if that limitation should be held void, it is not such an essential part of the contract as to avoid the whole. Were the contract to keep the child so long as he should continue chargeable, there could be no pretence that such a contract would be within the statute. Under this aspect of the case, however, the defendants’ counsel contends that it should appear that the child was chargeable and continued so, vide Stevens v. Howard, 12 Johns. R. 196, which decides that point and seems conclusive. A new trial ought therefore to be granted, unless it clearly appears that for other reasons the plaintiff cannot recover.

This is an action against the overseers as overseers, and not individually. In order to charge the successors in office, it should appear that the officers making the contract had authority to do so. If an overseer contracts to support a pauper without an order for that purpose, he transcends his legitimate authority; 1 R. L. 287, 8 ; 3 Wendell, 198 ; 15 Johns. R. 281; and though he may be personally liable in such case, yet his acts, not being within his authority, are not obligatory upon his successors in office. In the case of King v. Butler, 15 Johns. R. 281, an overseer was held responsible upon an express promise, though no order was obtained. So here, were the action against Hale, who made the contract, in his individual capacity, it would be no defence for him that he had not obtained an order ; but when the successors in office are sought to be charged, an order should be shewn, as they are responsible only upon the lawful contracts of their predecessors. In this case there was no order but the order of filiation ; that order was compulsory upon the putative father, but it did not authorize the overseers to pay any weekly or other sum for the support of the child.

There is another difficulty in the way of a recovery in this case. Even admitting that the agreement was valid, it appears to have been determined by Hale. It is testified by one

of the justices who made the order of filiation, that he told ^ pja}ntjff the overseers would pay no more after the death °f the putative father, and the plaintiff told him that Hale had refused to pay any longer. In Palmer v. Vanclenburgh, 3 Wendell, 199, it was held that contracts of this nature were revocable. There the contract was for $45 per annum for the support of a pauper, but for no definite period. The defendants (overseers) gave notice that the town would pay no longer for the support of the pauper, and it was held that as the contract was for no definite period, unless for one year, either party was at liberty to put an end to it at the end of the year. So here, the contract was for no definite period, unless it were one week, and therefore either party was at liberty to put an end to it at the end of the week. Had the child in this case become an invalid or sick, so as to have required the expenditure of more money than the weekly allowance, the plaintiff would not have been willing to have incurred such extra expense, and would have been at liberty to have rescinded the contract, or rather to put an end to a contract which had no definite termination except at the election of either party. The same officer who made the contract gave notice that he would pay no longer.

I am therefore of opinion that a new trial be denied.