Gault v. Brown.

Davis v. Eastman, 1 Allen, 422), affords the same recognition of that agreement, and the same security against fraud and false swearing, as if they were contemporaneous with the making of the contract.

Besides, in view of the great variety of cases of delivery differing as to time and circumstances, including deliveries by carriers, it would be exceedingly difficult to lay down a rule by which to determine whether such delivery and acceptance were at the time of the contract or not; and the fact that no such rule has been laid down is a strong argument against the existence of any such distinction.

In England a delivery and acceptance subsequent to the contract is held to be sufficient. In Chaplin v. Rogers, 1 East, 192, there was a sale of a stack of hay, and about two months after the vendee sold a part to another, who took it away, and it was held that here was an acceptance which took the case out of the statute; and this case is recognized by BELL, J., in Shepherd v. Pressey, 32 N. H. 56.

In Walker v. Nassey, 16 M. & W. 302, it is said by PARKE, B., that the "part payment" mentioned in the statute must take place either at, or subsequent to, the time when the bargain was made. See, also, Carter et al. v. Touissaint, 5 B. & A. 855.

In Browne on Frauds, § 337, it is said to be well established that an acceptance and receipt subsequent to the making of the bargain will take the case out of the statute. Such is the doctrine of Marsh

et al. v. Hyde, 3 Gray, 331, after full consideration.

In Thompson v. Alger, 12 Met. 428, it was decided that a payment of part of the price of goods after the time when the contract was made would take a case out of the New York statute of frauds, although the provision of that statute was that there should be payment "at the time;" the court saying that it was held, both in England and America, that a subsequent delivery and acceptance was sufficient. This is also the established law in New York. Vincent v. Germand, 11 Johns. 283; Sprague v. Blake, 20 Wend. 61; and McKnight v. Dunlop, 1 Seld. 342. In the latter case some stress is put upon the fact that the legislature struck out of the law as reported the words "at the time," which would have required the acceptance to be when the contract was made; but independently of this, the rule in New York is well established upon grounds applicable to the statute of 29 Car. II, and also to our own statute, which is substantially the same.

Gault v. Brown.

In Davis v. Moore, 13 Me. 424, the plaintiff sold to defendant a quantity of mill logs at a price agreed. The bargain was in the forenoon, about one mile from the logs, and the buyer at the time employed the plaintiff's agent to haul a portion of the logs to defendant's mill, which he did in the afternoon of that day; held, that, having thus taken a part, the contract which was entire was good under the statute.

We think, then, that the contract, as the case now stands, must be regarded as entire, and that the delivery and acceptance is sufficient to take the contract out of the statute, so far as respects the provision in question.

The remaining question is, whether this contract falls within that class of contracts which are not to be performed within a year; and it becomes necessary to consider the construction given to the statute. By the revised statutes no action can be brought to charge any person upon an agreement that is not to be performed within one year from the time of making it, unless the agreement be in writing; and this is substantially like the statute of 29 Car. II, ch. 3. In Blandin v. Sargent, 33 N. H. 239, it is said by BELL, J., that the authorities cited for the plaintiff have established elsewhere the rule that the statute does not apply to any contract unless, by its express terms or by reasonable construction, it is not to be performed, that is, is incapable in any event of being performed, within one year from the time it is made; and then he goes on to add: "If by its terms, or by reasonable construction, the contract can be fully performed within a year, although it can only be done by the occurrence of some contingency by no means likely to happen, such as the death of some party or person referred to in the contract, the statute has no application, and no writing is necessary;" and it was accordingly decided that a promise by the defendant to do no more business at F., as a physician, was not within the statute, because the defendant might have died within the year, and then the promise might have been fully performed.

The principles laid down in this case are fully sustained by the authorities, and we think they are decisive of the question before us. Here the plaintiffs agreed to deliver as much of the lot of wood sold, supposed to be about seven hundred cords, as they could, that winter, and the residue, the next winter and year; and the defendants agreed to take the wood so delivered and pay for it at a certain price per cord, on demand, after each winter's delivery.

VOL. II.-28.

Pitkin v. Noyes.

The plaintiffs, then, were bound to deliver it all, if they could, that winter, and the defendants to take and pay for it; and we think it cannot be said as a matter of law that the wood could not all have been delivered that winter. On the contrary, it is clear that it might be; and, if so, the agreement was capable of being performed within the year. The most that can be said is that there was reason to expect there would be a balance to be delivered the next winter; but that is not enough to bring it within the statute as an agreement not to be performed in a year.

It is urged for the defendants that a reasonable construction of the agreement shows that the parties contemplated a longer period than one year for its performance. If by the term "contemplated," it is meant merely that the parties expected that the plaintiffs would be unable to deliver all the wood within the year, we think the defendants' position is not sustained by the authorities.

The cases, indeed, are very numerous where the parties must have expected that the agreement would not be fully performed within a year, and yet, because by the terms of the contract it might be, it is held not to be within the statute.

Such is the doctrine of Blandin v. Sargent, where the parties must have expected that the contract would not have been performed within a year. Among the numerous cases that maintain the same doctrine, are Fenton v. Emblers, 3 Burr. 1278; 1 Salk. 280, Anon.; Peters v. Compton, Skin. 353; 1 Com. on Con. 86; Souch v. Strawbridge, 2 M. G. & S. 808; Hinckley v. Southgate, li Vt. 430; Artcher v. Zeh, 5 Hill, 200.

Case discharged.

PITKIN V. NOYES.

(48 N. H. 294.)

Contract by parol - Statute of fraud - Sale of crop to be raised—

Consideration.

Plaintiff made a parol contract with defendant, whereby the latter was to raise three acres of potatoes and deliver them to plaintiff at a stipulated price per bushel. In an action for non-delivery, held, that it was a question for the jury to determine, whether, under the contract, the defendant was

Pitkin v. Noyes.

bound to raise the potatoes himself, in which case it would be a contract for work, labor and materials, and not within the statute of frauds; or whether he might procure them by purchase or otherwise, which would render it a contract of sale, and therefore void.

The compromise of a doubtful and conflicting claim is a good consideration for a new agreement.

ACTION of assumpsit.

In the spring of 1863 plaintiff and defendant made a verbal agreement, whereby the defendant was to raise, that year, three acres of potatoes, and deliver them to the plaintiff at twenty cents per bushel; and there was some evidence, which was disputed, that the contract was to include the year 1864. The defendant raised and delivered the three acres in 1863, when the plaintiff refused to pay over eighteen cents per bushel, claiming that the contract was not legal, not being in writing. The plaintiff finally agreed to pay the twenty cents per bushel, provided the defendant would agree to raise and deliver three acres of potatoes at the same price in 1864. This bargain was concluded in January, 1864. This action was brought for a non-delivery of the potatoes of 1864.

The jury disagreed, and the case was reserved for the purpose of having the questions of law settled.

Ladd, for plaintiff.

Ray, for defendant.

BELLOWS, J. If the bargain in the spring of 1863 was for the potatoes of that year, and also for the year 1864, it would be witnin the statute of frauds, as to the potatoes of the last year, at least, as an agreement not to be performed in one year. Emery v. Smith, 46 N. H. 151. The question, then, is, whether a valid agreement for the crop of 1864 was made in January of that year; and we propose to inquire, in the first place, whether such a contract as is stated in the testimony of the plaintiff is to be regarded as a contract for work, labor and materials, or a contract of sale of the crop of pota toes. If the former, it is not within the statute of frauds, but if the latter, it is.

It is manifest, from the nature of the case, that it must be very difficult to draw a line of distinction between these two classes of contracts. In some instances the distinctions must be very nice, and

Pitkin v. Noyes.

it is to be expected that we should find the authorities not altogether harmonious.

It is now settled, however, that a contract for the sale of goods is not without the statute because it is executory, and it is well settled that a contract for work and labor and materials found is not within the statute.

In the early English cases it was held, that a contract for the sale of articles to be afterward manufactured and delivered was not within the statute; as in Towns v. Osborne, 1 Str. 506, where defendant bespoke a chariot; and so of a contract to deliver wheat not then threshed, as in Clayton v. Andrews, 4 Burr. 2101. In both of these cases the decision went upon the ground that the contract was executory. But these cases were soon after qualified by decisions holding that contracts of sale, though executory, were within the statute (Rondeau v. Wyatt, 2 H. Blk. 63, and Cooper v. Elston, 7 T. R. 14); and yet the results reached in Towns v. Osborne and Clayton v. Andrews have been in some cases recognized as correct, although upon a different ground, namely, that the articles were not existing at the time of the bargain, and so incapable of delivery and acceptance; as in Graves v. Buck, 3 M. & L. 178; 2 Starkie Ev. 608, and cases cited in note C.

But in Garbut v. Watson, 5 B. & Ald. 613, it was held that a contract to sell one hundred sacks of flour at a price fixed, to be ready in three weeks, was within the statute, though the flour was not then ground.

Of the same character is Smith v. Surnam, 9 B. & C. 561, where it was decided that a bargain for certain timber trees growing on the owner's land, at a fixed price per foot, was a contract for the sale of goods, and within the statute, although to be cut afterward by the seller; holding that when cutting them he was doing work for himself and not for the buyer. LITTLEDALE, J., holds that where the contracting parties contemplate a sale of goods, although at the time of making the contract the subject-matter does not exist as goods, but is to be converted into that state by the seller's bestowing work and labor on his own raw materials, that is a case within the statute; and he says further that it is sufficient if, at the completion of the contract, the subject-matter be goods, wares and merchandise; and PARKER, J., says, the true question in such cases is whether the contract be substantially a contract for the sale of goods or for work and labor and materials found.