Comes v. Lamson

On the 26th of October, 1841, A made a parol contract with B to labour for him, one year, for 360 dollars, and to commence the service upon A's return from New-York, which was to be in the course of a week or ten days thereafter. B, on the 9th of November following, after his return from New-York, commenced his labour under the contract, and so continued until the 26th of June, 1842, when he left the employment of B. In an action of book debt, afterwards brought by A against B, for his services, it was held, 1. that the contract not being one, which, by its terms, was to be performed within one year from the making thereof, and not being reduced to writing, was within the statute of frauds and perjuries; 2. that the part performance of this contract by A, by serving under it more than six months, did not take it out of the statute so as to give it validity; 3. that being thus within the statute, it was not available to defeat the claim of A; 4. that A‘s entering into B's service on the 9th of November, furnished no presumption to go to the jury, that the parties recognized the contract as one perfected and completed on that day. [One judge dissenting on the last point.]

This was an action of book debt. The cause was tried, on the general issue, at Litchfield, February term, 1844, before Waite, J. On the trial, the plaintiff claimed to recover his wages, as a labourer for the defendant, from the 9th of November, 1841, to the 26th of June, 1842. The defendant admitted, that the services had been performed, but claimed, that they had been performed under a special contract; and in support of his claim, he testified, that on the 26th of October, 1841, he entered into a contract with the plaintiff, by the terms of which the plaintiff agreed to labour for the defendant, one year, for the sum of 360 dollars; that the labour was to commence upon the plaintiff's return from New-York, to which place he was about to proceed, and to return by the way of Poughkeepsie, in the course of a week or ten days thereafter; that afterwards, upon the 9th of November, 1841, the plaintiff commenced labouring for the defendant, and continued so to labour until the 26th of June, 1842, when, without the knowledge and consent of the defendant, and without any just excuse, he left the defendant’s service, and no more returned to it; and that nothing was said by the parties, as to the time of payment. The plaintiff did not contradict any part of the defendant’s testimony, except as to the term of service, which, he testified, was to be six months, at 30 dollars per month. It was not claimed, that such contract had ever been reduced to writing, or that any note or memorandum thereof had been made. It further appeared, that the parties both resided in Washington, in Litchfield county, where the services of the plaintiff were to be performed. The defendant did not testify, nor claim, that subsequent to the 26th of October, the parties had in fact any conversation or communication with each other, in relation to said contract; but he insisted, that if the jury should believe the facts sworn to by him, they might reasonably infer from the fact that the plaintiff had entered into the defendant’s service on the 9th of November, that the parties then recognized said contract, and considered it as then perfected and completed, and that it took effect from that time; and that the plaintiff, by abandoning it, had precluded himself from a recovery in this case; that such facts constituted an answer to the action; and he prayed the court so to instruct the jury. The plaintiff admitted, that if the jury believed, that the contract was, as the defendant testified it was; and if they believed, that the plaintiff entered into the defendant’s service under that contract; they might take these circumstances into consideration, in connexion with the time and manner in which the plaintiff left the defendant’s service, in estimating the value to the defendant of the plaintiff’s services; but the plaintiff claimed, that the fact that he did enter into the defendant’s service on the 9th of November, did not conduce to prove, that he so entered under the contract, as sworn to by the defendant. And the plaintiff claimed, that inasmuch as there was no note or memorandum in writing, of the contract sworn to by the defendant, such contract could not be set up as an answer to the plaintiff’s action, so as to prevent the plaintiff’s recovery of what his services were reasonably worth. The court did not instruct the jury as claimed by the defendant, but said to them, that if they should find the contract to have been made as stated by the defendant; yet, as by the terms of the contract, it was not to be performed within one year from the time of the making thereof, and was not reduced to writing, and no note or memorandum thereof was made; the contract, by reason of the statute against frauds and perjuries, was not obligatory upon the parties, and would not preclude the plaintiff from recovering what his services were reasonably worth. The jury returned a verdict in favour of the plaintiff; and the defendant thereupon moved for a new trial. contended, 1. That the contract being for a year’s service, and the plaintiff having quitted service, some months before the expiration of the year, he can, by the common law, recover nothing of the defendant. He must perform the contract fully, or he gets no pay. This has long been the established rule; and no injustice has resulted from it. Without this rule, great injustice would be done to the employer. 2. That the defendant having thus a good defence to the action, this defence is not destroyed, by the operation of the statute of frauds on the contract. The statute does not make the contract utterly void: it only provides, that “no suit shall be brought or maintained upon any agreement that is not to be performed, &c. Stat. 299. tit. 39. 1. (ed. 1838.) The remedy, by a suit on the agreement, is taken away; but the statute leaves the agreement, in every other respect, just where it finds it. A debt barred by the statute of limitations, though it cannot be enforced, by a suit thereon, is not destroyed: it is still a sufficient consideration to support a new promise. 3. That the jury might reasonably infer from the plaintiff’s going into the defendant’s service on the 9th of November, that the parties recognized the contract, and considered it as perfected, at that time. If the jury might reasonably make this inference, it was the plain duty of the court so to instruct them; and if the contract was perfected on the 9th of November, it was one to be performed within a year; and consequently, not within the statute. insisted, 1. That if the contract was such as the defendant stated and claimed that it was, it was void by the statute of frauds; and therefore, presented no obstacle to a recovery by the plaintiff, in this action. A contract that cannot he enforced, is no contract. Bracegirdle v. Heald, 1 B. & Cres. 722. Lower v. Winters, 7 Cowen, 263. Drummond v. Burrell, 13 Wend. 307. Shute v. Dorr, 5 Wend. 204. The plaintiff asks to be paid for services, which he has faithfully rendered to the defendant. The defendant does not deny that he has had the benefit of these services, but he refuses to pay for them, because there was a special contract which has not been fully performed. Is there not a conclusive answer to this claim, when it is shown, that that contract was a void one? The services being admitted, it is incumbent upon the defendant to take the labouring oar, and show, in avoidance of the plaintiff’s claim, a valid, subsisting contract,—such an one as would entitle him to damages for a breach of it. But it is said, that the contract was made when the plaintiff began his service on the 9th of November; and, it is admitted, that it was to be performed within a year from that time; and so it was not within the statute. The decisive answer is, that there never was but one contract made between these parties; and that was made on the 26th of October, when their minds met. After this, they had no conversation or communication with each other, on the subject. Nor would the mere fact that the plaintiff began to labour for the defendant, on the 9th of November, afford any presumption that the contract was made on that day. A contract must necessarily be made before performance under it is commenced; and is usually made on a day previous to that on which performance is commenced. The presumption is altogether against the defendant’s claim. 2. That if there was a valid contract between the parties, and the plaintiff left the defendant's service before it was fully performed, this was no forfeiture of the plaintiff’s wages, but he may still recover so much as his services were reasonably worth. Chitt. Contr. 580. n. Britton v. Turner, 6 N. Hamp. R. 481.