Plimpton v. Curtiss — 15 Wend. 336

Majority

p. 336

Plimpton vs. Curtiss.

Headnote

An agreement to save the statute of frauds need not he in writing, although ' by the terms of it the party may at his election perform the agreement after the year ; it is only when it appears by the whole tenor of the agreement that it is to be performed after the year that a note in writing is necessary.

. \ ' Demurrer to plea. The plaintiff declared on a contract made the first day of October, 1828, by which the defendant engaged to find timber for the frame of a house arid to build a . house for the plaintiff, of certain dimensions, the whole to be done before the close of the year 1829. In consideration of which, the plaintiff was to pay a certain sum, payments to be made as the work progressed. The defendant pleaded actio non, because the promises, &c. were not to be performed within one year from the time of the making of the agreement, and that no note or memorandum, in writing of the agreement was made, &c.. To this plea the plaintiff demurred.

S. Cheever, for plaintiff.

& Stevens, for defendant.

By the Court,

It seems to be conceded by the defendant, that this plea would have been bad upon special demurrer, as amounting only to the general issue, but he insists that objection cannot be raised upon a general demurrer.

The true question upon this record is, whether the agreement set forth in the declaration is according to its fair construction not to be performed within a year. The language of the revised statutes, 2 R. S. 135, <§> 2, is as follows: “In the following cases every agreement shall be void unless such agreement, or some note or memorandum thereof, expressing the consideration, be in writing, and subscribed by the party to be charged therewith : 1. Every agreement that by its terms is not to be performed within one year from the making

p. 337

thereof.” The agreement set forth in the declaration in this case is not for the building of a house after the expiration of one year, but that it shall be performed at the farthest within fifteen months. There is nothing in the agreement prohibiting the defendant from completing the contract within six months or a shorter period. Suppose he had done so, and sued the plaintiff for compensation for his labor and materials found, would it have befen permitted to the plaintiff to have said that the contract was not to be performed within a year, and therefore it was not obligatory upon him? Most clearly not. And if obligatory upon one party, it is equally so on the other. The defendant might have performed the contract within a year, and therefore it is riot within the statute. 10 Wendfill 426, and cases there cited.

It is argued by the defendant’s counsel, that by demurring, the plaintiff admitted the facts set up in the plea. That may be conceded in this case, and still the demurrer be well taken.

The defendant does not plead any new fact, but merely draws an inference of law from the facts stated in the declaration ; so that the question still returns, what is the legal effect of the contract as stated in the declaration ? On that question there can be no doubt.

Judgment for plaintiff on deihiirrer; leave to amend on payment of costs.