Parks v. Francis's Administrator

Statute of Frauds. Nathan Francis promised, plaintiff’s father that if he would name plaintiff, an infant, Nathan Francis Parks, he would deposit $100 for plaintiff in a certain savings bank, in four equal annual installments~one deposit each year until all were made. Two successive deposits only having been made, assumpsit was brought for the others. Held, that as the promise was not to be performed within a year, it was within the Statute of Frauds.

Appeal from the decision and report of commissioners on the estate of Nathan Francis. The declaration was in assumpsit in the common counts. Pleas, general issue and Statute of Limitations. Trial by the court, September Term, 1877, Dunton, J., presiding. The plaintiff, a minor, prosecuting by his father and next friend, Martin Parks, sought to recover under a parol contract claimed to have been made between the decedent, who died January 24, 1876, and plaintiff’s father, and offered to prove the contract by his father and mother. Defendant objected to their competentcy, but they were allowed to testify; to which defendant excepted. On their testmiony and that of other witnesses, the court found that when plaintiff was about a year old, the decedent verbally promised plaintiff’s father that in consideration that plaintiff should be named Nathan Francis Parks, he. would deposit for plaintiff at the Rutland Savings -Bank one hundred dollars in four equal annual installments — one deposit each year after the first until all were made ; that in consideration of that promise that name was given to plaintiff, and has ever since been borne by him; that the decedent deposited $25 in said bank to plaintiff’s credit on October 17, 1865, and took a deposit book therefor, and that on December 31, 1866, plaintiff’s father, who then owed the decedent $25, deposited that sum, by direction of the decedent, at said bank to plaintiff’s credit, and had the same entered on the deposit book ; that no further installment was ever deposited or paid, but that the decedent shortly before he died promised plaintiff that he would perform the agreement. Defendant claimed that on those facts plaintiff was not entitled to recover; but the court ruled, pro forma, that he was entitled to recover for two installments, with interest from the time they were to have been deposited, and rendered judgment accordingly. Exceptions by defendant. The father was not a competent witness, as the contract was between him and the decedent. Gen. Sts. c. 36, s. 24, and cases passim. The promise was made to the father, and whatever consideration there was moved from him, and an action to enforce the promise can be brought only in his name. Chit. Cont. 63, (6th Am. Ed.) ; Sail v. Suntoon, 17 Vt. 244; Pangborn v. Saxton, 11 Vt. 79; Crampton v. Ballard, 10 Vt. 251; Dennison v. Boylston, 48 Vt. 439. The promise was nudum pactum. The intestate received no benefit, and the father suffered no loss. Chit. Cont. 29, 46. The cause of action is for the non-performance of a special executory contract, and no consideration passed to the defendant for which there can be a recovery under the common counts. Sail v. Suntoon, 17 Vt. 244 ; Swift Dig. 690 ; Curtis v. Smith, 48 Vt. 116; Chit. Cont. 68. The contract was not to be performed within one year, and as it was not in writing, no action can be maintained upon it. Gen. Sts. c. 66 ; Pierce v. Estate of Paine, 28 Vt. 34 ; Sheehy v. Adarene, 41 Vt. 541; Sinhley v. Southgate, 11 Vt. 428 ; Eoote v. Emerson, 10 Vt. 338. The father was not incompetent as a party. Brown v. Hull, 16 Vt. 673; Doran v. Smith, 49 Vt. 353. The declaration is sufficient, especially as no objection was made thereto. Emerson v. Young, 18 Vt. 603. The promise has all the validity of a written one. The agreement, for all legal purposes, was as if made with the plaintiff; and each payment and promise was a renewal thereof. Brydia v. Platt, 2 Tyl. 369 ; Stone v. Curler, 2 Vt. 115; Smith Cont. 65, n. 2. The consideration was the gratification of defendant’s ambition to perpetuate his name through a partial and cherished living memorial; and whether plaintiff gained or lost is not material. Gen. Sts. c. 63, s. 19. The Statute of Limitations cannot run against a party while under a legal disability to sue alone. The only promise to the plaintiff personally, was just before the death of the decedent, and being upon a recognized consideration, is not open to any of defendant’s objections. 2 Saund. 117,215 ; Angelí Lim. 197.