Farwell v. Tillson

Symonds, J. On July 22, 1873, the following proposition in writing was made by the plaintiffs to the defendant: "We offer and will bind ourselves to freight the stone to Baltimore for your St. Louis contract for §2.20 per ton for cut stone, provided you load and discharge same with assistance of crew, and all other conditions as to water and detention aré as you have talked to us.” This bid was accepted orally by the defendant. The St. Louis contract, to which the writing refers, was one by which the defendant had agreed to furnish and deliver to the government, on terms defined therein, the granite required for the construction of a custom house then proposed to be erected in St. Louis. One ground of defense at the trial of the present action was that this contract between the government and the defendant was "not to be performed within one year from the making thereof;” that as the agreement between the plaintiffs and the defendant, which was completed by the acceptance of the written proposition already stated, related to the performance of a part of the government contract, the carriage of the stone which the defendant was bound to deliver to the government at the site of the proposed building in St. Louis, and to its performance in a respect in which that contract was not to be performed within one year from the date of the agreement between the plaintiffs and the defendant, it must be true of this latter agreement that it was not to be performed within a year from its date, since it was based upon the St. Louis contract, adopted it as one of its terms and impliedly followed it in point of time — 236 — for performance; and therefore that, if proved, the agreement between the plaintiffs and the defendant, which the declaration charges the defendant with breaking, was within the statute of frauds and did not sustain the action, neither the contract nor any memorandum or note of it being in writing signed by the defendant. Exception is first taken to the ruling that, "where, as in this case, that ground of defense (the statute of frauds) is claimed in the pleadings and is insisted upon at the trial..... it is open to the defendant, notwithstanding formal objection may not have been taken to certain testimony introduced tending to show an oral contract.” The claim is that, although the statute of frauds was pleaded in bar of the action, the failure to interpose an objection to certain testimony introduced by the plaintiffs, tending to prove an oral contract, was a waiver of that ground of defense. This claim of the plaintiffs is not in accordance with the practice of the courts. In Browne, Stat. Frauds, § 508, it is' said: "With regard to contracts, the statute being regarded as not affecting their validity, it is held that unless the privilege,' of requiring statutory evidence, given by it to the party resisting the enforcement of the contract is sufficiently claimed by him in some proper pleading, the court will proceed with the contract under common law rales ;” and in § 515, as to proceedings in equity, "By the unbroken course of more modem decisions it is now settled that, although the defendant admit the agreement, it cannot be enforced without the production of a written memorandum, if he insist upon the bar of the statute. As was said by Sir William Grant, 'It is immaterial what admissions are made by a defendant insisting upon the benefit of the statute; for he throws it upon the plaintiff to show a complete written agreement, and it can no more be thrown upon the defendant to supply defects in the agreement than to supply the want of an agreement.’ The American courts have also fully accepted this doctrine.” In this state and in Massachusetts, at least, the proper method of insisting upon the statute of frauds as a ground of defense in — 237 — a case like the present is to plead it specially, (Lawrence v. Chase, 54 Maine, 196 ; Bird v. Munroe, 66 Maine, 346 ; Boston Duck Co. v. Dewey, 6 Gray, 446; 1 Chit. Plead. 16th Am. Ed. * 507) and, when-this has been done, a failure to object to certain evidence tending to show an oral contract, that is to say, to certain evidence which does not prove the issue, is not a waiver of the issue itself; especially when the whole course of the trial shows that, in point of fact, the precise issue of the pleadings was the one to which the controversy before the jury related and upon which the rulings of the court were given. . Moreover, the contract declared on was indisputably an oral one. The written proposition referred to previous conversations between the parties for some of the conditions on which it wras made. The acceptance was oral. The principal «question was whether the agreement was within the statute of frauds for the reason that it was not to be performed within one year, or whether the time of performance was such as to leave it valid without writing. Neither the court nor the jury, as the case might be, could, pass upon that question till the whole agreement was stated in evidence. It by no means appears that formal objection to "certain testimony introduced tending to show an oral contract,” could have been sustained, if it had been made. By the terms of the contract between the government and the defendant, in the event of default or failure of performance by the defendant and after eight days notice in writing, the government might enter into possession of the quarries and work them to complete the contract at the expense of the defendant; the contract containing a lease of the quarries to the United States for that purpose. It is contended that under this provision a contingency might arise within a year and terminate the contract between the plaintiffs and the defendant; so that for this reason it was not within the statute of frauds. The substance of this claim seems to us to be, that the defendant, having agreed with the plaintiffs for them to carry to Baltimore the stone for the St. Louis contract, might legally terminate his agreement with them by throwing upon the — 238 — government through his own default the burden of performing what his contract required him to do; in other words, that having given the plaintiffs by his agreement with them the right to perform for him a part of the government contract,- the defendant might lawfully neglect or refuse to fulfil it on his part, and thereby render his agreement with the plaintiffs impossible of performance. We think, on the contrary, it was an implied term in the contract between these parties that, in the absence of facts which would legally excuse or justify a failure on the part of the defendant to do so, he should keep his government contract, so far as was necessary to enable the plaintiffs to perform the agreement he had made with them; and that the possibility of default in this respect -was not a contingency," which excluded the application of the statute of frauds on the ground that it might happen within the year and, if it happened, the contract was performed, but simply a possibility that the defendant, having made two agreements, one with the plaintiffs and one with the government, might fail to keep either of them. The two contracts are so closely connected that in a certain sense one seems to be but an incident of the other. The construction of the earlier contract materially affects the construction of the later. As was said to the jury, "If the government by fair construction of its contract might have required performance within a year, it would follow that the defendant might have required of the plaintiffs the performance of their contract, the carriage of the stone, so cut, within a year.” The same would be true if the defendant had the right to perform and could have performed within that time, though the government could not have required it. In Hill v. Hooper, 1 Gray, 133, it is said, "It is the settled construction of this clause of the statute, that unless the agreement can be completely performed within a year, no action can be maintained on it.” The same rule is given in Doyle v. Dixon, 97 Mass. 212, and repeated in Bernier v. Cabot Manufacturing Co. 71 Maine, 508. "If the agreement cannot be completely performed within a year, the fact that it may be terminated, or further performance excused or rendered impossible, by the death of the promisee — 239 — or of another person within a year, is not sufficient to take it out of the statute..... "If the death of the promisor within the year would merely prevent full performance of the agreement, it is within the statute; but if his death would leave the agreement completely performed and its purpose fully carried out, it is not.” We think this language is as true of a contingency such as is here alleged as of one arising from the uncertainty of life. To defeat the application of the statute of frauds, the contingency must be one which renders performance of the contract possible within the year; otherwise, the words of the statute apply, the agreement is one "not to be performed within one year from the making thereof.” The contract declared upon being partly oral, and conflicting evidence having been introduced in regard to the conversations which were alleged to have resulted in a completed contract, the questions whether a contract was in fact made and, if so, what were its terms, were for the jury; and its .legal effect might properly be submitted to the jury as a mixed question of law and fact, they finding the facts and the court directing as to the legal results which followed. Homans v. Lambard, 21 Maine, 308 ; Smith v. Faulkner, 12 Gray, 256. The principal exceptions relate to -the rulings given to guide the jury in determining whether the oral contract, if proved, was one not to be performed within a year, in the sense intended by the statute of frauds, and, therefore, without effect to sustain the action which had been brought upon it. The substance of the rulings seems to be that this is simply a question of the legal construction of the contract, that in this respect such aids as the law allows in other instances of disputed construction are to be sought in the situation of the parties and the subject matter of the contract, in determining what the parties intended by the language used; and that if the contract, legally construed, is one not to be performed within the year, the statute applies. The jury were told that this clause of the statute does not apply to contracts which simply may not be performed within the year, even if they probably will not or are not expected to be so — 240 — performed, but only to those which are not to be performed within that time ; that it includes any agreement which by a reasonable construction of its terms, and in view of all the circumstances existing at the time, does not admit of performance according to its language and intention within that period; and that effect was to be given to the oral contract, if proved, unless upon the whole case it appeared, affirmatively, that more than the year was required for its performance. " We want to put ourselves in the position of these contracting parties at the time they made the contract, for the purpose of finding out what they intended by it — not for the pui-pose of making any new contract for them— so that we may see things in the light in which they were before the parties at that time, and be able to apply-the contract to the subject matter, and so get more closely to the intent of the parties as declared by the language of the contract itself. For this purpose I have received evidence tending to show what this contract was, what it related to, what the subject matter was, •what amount of labor was to be done, what time was required in doing it, what vessels there were for doing it — so far as ■these things were known to the plaintiffs and no further — -what other quarries there were in the vicinity which were available to the defendant and acceptable to the government, so far as these facts were known to the parties at the date of this bid, what means or opportunities there were for increasing the facilities for doing the work, all the circumstances and situations of the parties, and then it is for the jury to say what this contract means. . . . . Was it within the understanding and intention of the two contracting parties, as declared by the contract, that it might be performed within a year?.....The subject matter of a contract might be a thing which could not possibly be done within a year. A consideration of the subject matter would show just as clearly that it was not to be performed within a year, as if there was an express agreement in the terms of the contract, that it was not to be performed within a year. So, also, a consideration of the circumstances and subject matter might show that performance of it, within a year, would require such extraordinary methods, such extraordinary appliances or resources — 241 — as could not by fail- construction be regarded as within the intention of the parties, at the time when the contract was made; and the question is, considering the subject matter, and the situation of the parties as known to each other, and reading the contract in the light which these give, whether by fair construction, it was within the understanding and intention of the parties as expressed in the contract, that it might be performed within a year, or not.” In support of the exception to these rulings, many authorities are cited by the learned counsel for the plaintiffs to the effect that it must appear by the terms of a contract, affirmatively, that- it cannot be performed within a year, or the statute of frauds does not apply. We do not object to this statement as a general rule of law, and it is in very few of the cases cited, that we find anything which seems to ns essentially inconsistent with the rule given to the jury at this trial. The meaning of the terms of a contract, it need not be said, is to be ascertained by interpreting them in the light of the subject matter to which they relate. They may mean one thing when used in reference to one subject,' or by parties in one situation, and another thing when used under other circumstances in regard to another subject, and the true construction in each instance will be that which applies the contract to the res, about which the parties were dealing, and reproduces the intent which they themselves have expressed in it. A description of the nature and extent of the work stipulated to be done, in the absence of express provision on the subject, may be an indispensable element in determining whether the work was by the contract to be done in a year, or whether the contract was one not to be performed in that time. It may show performance impossible in that period, or so impracticable as to be plainly beyond the scope and intent of the agreement as expressed in the language used. The duty of the defendant to deliver the granite ” at such times and in such quantities as might from time to time be ordered,” as was said in the ruling, did not require .of him immediate performance, upon demand, of the whole contract. Time must be allowed to execute the work, and the limitations upon the right of demand, which necessarily result from that fact, must apply. — 242 — The granite was to come from the quarry on Hurricane Island. The capacity of that quarry is involved. Should the granite at that quarry be found unsuitable for the moulded and enriched work of the superstructure of the building, the defendant was bound to furnish granite therefor from other approved quarries ; and the plaintiffs at the trial were allowed to offer evidence that there were other quarries in the vicinity available for the purpose of supplying the granite under the contract, as one of the facts of the situation, to be considered by the jury in. determining what period of time was required for performance, and whether the defendant had sustained the burden of proving that the contract was one not to be performed within the year. If the government had not the right to exact performance within the year from the acceptance of the offer of July 22, 1873, and the defendant could not have performed in that time, then it followed that the plaintiffs’ contract was one the performance of which must extend beyond a year from its date. " The collection of such intention ” — that expressed in a contract — " by inferences from stated terms, or from actual circumstances, or both, is the office of interpretation. The adjustment of such intention to paramount law is the office of construction.” Story on Cont. § 631. "The oral evidence does not usurp the authority of the written instrument; it is the instrument which operates; the oral evidence does no more than assist its operation .... by pointing out' and connecting its terms with the proper subject matter.” 3 Stark, Ev. 756; 1 Chit. Cont. 11th Am. Ed. 148. Notwithstanding dicta and some decisions, especially among the earlier cases, which tend to sustain the position assumed for the plaintiffs, we regard the rule of law as established in this state by the opinions in Herrin v. Butters, 20 Maine, 119, and Hearne v. Chadbourne, 65 Maine, 302, in conformity with the rulings which were made at the trial. In the latter case, it is said : " It is true that in the absence of any words or acts of the parties, indicating the contrary, an agreement to work for a year means, to work for that time commencing forthwith. The referee reports no express stipulation in the contract to overcome this presumption; but he sets out the acts of the parties showing the — 243 — contemporary interpretation which both put upon it, and this-places the case directly within the doctrine laid down in Herrin v. Butters, 20 Maine, 119; Peters v. Westborough, 19 Pick. 364; and Boydell v. Drummond, 11 East, 142, where the old idea-, that it must be expressly and specifically agreed that the contract: is not to be performed within the year, as expressed in Moore v. Fox, 10 Johns. 244 ; and Fenton v. Embler, 3 Burr, 1278, is so far modified as to include cases where such appears to have been, the understanding of the parties.” At the same time that we regard the rule of law as settled in> this state, upon principle we see no reason why any other than the general rules of construction should apply in determining-when a contract is to be performed, with reference to the applicability of the statute of frauds. In Browne, Stat. Frauds, 4th Ed. § 279, it is said: "The-statute, finding the parties perfectly free to make a certain contract without a writing, provides, simply, that if that contract does by its terms expressed, or from the situation of the parties reasonably implied, require more than a year for its performance, they must put it in writing. In other words, it must affirmatively appear from the contract itself, and all the circumstances that' enter into the interpretation of it, that it cannot in law be performed within the space of a year from the making;” and in. § 281, "Where the manifest intent and understanding of the-parties, as gathered from the words used and the circumstances existing at the time, are that the contract shall not be executed within the year, the mere fact that it is possible that the thing to-be done may be done within the year, will not prevent the-statute from applying. . . . Such an accomplishment must be an execution of the contract according to the understanding-of the parties.” The cases upon this question are too numerous to justify a-separate discussion of them, in view of the fact that we regard it as substantially settled in this state. A thorough examination of them leads to the conclusion that the rule stated by Browne and adjudged to be the law in Hearne v. Chadbourne, supra, is right upon authority, as we think it is, also, in principle; and — 244 — 'that there was no error in this respect in the rulings at the trial. What was said in the conversations which made the oral part of :chis contract, was for the jury to decide. We do not think the -court could say in the-first instance as matter of law, that a talk •■about detention could not include anything which might affect the period for performance of the contract. That was for the jury, and the ruling was correct that " if in the conversation between the parties, as to water and detention, anything was said which formed a part of the contract in regard to the time for the performance of the contract, that is to be considered by •the jury in determining the question whether it is within the • statute of frauds or not.” Mr. Farwell, one of the plaintiffs, in direct examination, had .stated without objection the conversations which preceded the making of the bid, and, besides the circumstances showing his knowledge of all the facts at the time when he made the written proposition for his firm, he says that" the defendant had told me when I inquired of him, and was talking about the bid, about ■.facilities, etc. I inquired about how much stone he thought there would be; he said his impression was about thirty-two thousand '.tons.” Motion and exceptions overruled. Feters, C. J., Walton, Daneorth, Virgin and Libbey, .JJ., concurred.