Comes v. Lamson

Waite, J. According to the testimony of the defendant, the plaintiff, on the 26th day of October, 1841, made a contract to labour for him, one year, at a stipulated price, and to commence the service upon the plaintiff’s return from New-York, which was to be in the course of a week or ten days thereafter. The plaintiff accordingly, on the 9th of November following, after his return from New-York, commenced his labour, and so continued until the 26th of June following, when he left the defendant’s employment. This contract was not in writing, and, by the terms of it, was not to be performed within one year from the making of it. It consequently falls directly within the provisions of the statute of frauds and perjuries. By that act, no action can be sustained upon it. Nor will the part performance of this contract, by the plaintiff, by serving under it, for a period of more than six months, give any validity to it. “The word used in this clause of the statute,” says Lord Ellenborough, “is performed, which ex vi termini must mean the complete performance or consummation of the work.” Boydell v. Drummond, 11 East, 156. And again, “will an inchoate performance, a part execution, satisfy the terms of the statute? I am of opinion it will not, and that there must be a full, effective, and complete performance.” Bracegirdle v. Heald, 1 Barn. & Ald. 726. The authorities upon this subject are numer [251] ous and decisive. Hubert v. Treherne, 3 Man. & Gran. 743. (42 E. C. L. 388.) Lockwood v. Barnes, 3 Hill, 128. But it is claimed, that although no action can be sustained upon this contract, for a breach of it; yet the defendant may, nevertheless, set it up by way of defence against the plaintiff’s claim for the services performed under it. And this brings us to the question, whether a contract, upon which the legislature has said no action shall be maintained, can be used to defeat a demand, otherwise legal and just. It is conceded, that the plaintiff laboured for the defendant, for a period of more than six months; that the defendant has received the full benefit of those services, and is bound to pay for them what they are reasonably worth, unless protected from such payment, by the contract under consideration. To permit the defendant so to use the contract, and prove it by parol testimony, would open a door to the very perjury against which, the legislature, by the statute, intended to guard. “The mischief,” says Mr. Justice Bayley, “meant to be prevented, by the statute, was the leaving to memory the terms of a contract for a longer time than a year. The persons might die, who were to prove it; or they might lose their faithful recollection of the terms of it.” Boydell v. Drummond, ub. sup. “The statute,” says Lord Kenyon, “is one of the wisest laws in our statute book.” Chaplin v. Rogers, 1 East, 194. And in the interpretation of it, care should be taken that its efficacy is not destroyed, nor its usefulness frittered away. Indeed, we need not look beyond the present case to witness the evils resulting from the defendant’s construction. For while he testified, that the contract was for a year’s service, and so not performed, the plaintiff swore, that he had agreed to work only six months, and consequently, had more than fulfilled his engagement. The action being on book, the parties, by our law, were admissible as witnesses. We have recently held, that a discharge from such a contract does not furnish a sufficient consideration to support an express promise made by the party released. North v. Forest, 15 Conn. R. 400. To allow the effect which the plaintiff claims, would seem to give a greater efficacy to a contract of this kind, than was allowed in that case. Besides, when the parties entered into this contract, they [252] must be considered as having done so with a full knowledge of the law upon the subject. That law entered into the contract, and formed a part of it, as much as if there had been an express stipulation to that effect. Bronson v. Kinsie & al. 1 Howard, 311. 319. Now, where a person has entered into a contract to perform certain service, at a stipulated price, and has made the performance of the contract on his part a condition precedent to his right to recover, he cannot enforce the payment, until he has performed the service. This rule operates to give effect to the agreement, as the parties have made it. But can we say in this case, because the parties have made an agreement, upon which no action can be sustained—which is by statute declared to be invalid,—that it was the understanding and agreement of the parties, that the plaintiff should receive nothing, unless he served the full time specified in the agreement? We cannot think such was the meaning and intention of the parties. And unless the parties have in fact so agreed, the rule referred to does not apply. There is certainly no express agreement to that effect; and, we think, such an agreement does not arise from any just inference. Again, it was insisted, that the court should instruct the jury, that they might infer from the fact that the plaintiff had entered into the service of the defendant, on the 9th day of November, that the parties had recognized the contract, and considered it as then perfected and completed. We have already shown, that a part performance of the contract has no effect in relieving it from the operation of the statute. If there can be any foundation for the defendant’s claim, it must be, that the recognition was made within the last year in which it was to be performed. Suppose then the contract had been, that the plaintiff should serve the defendant two years; the plaintiff serves the first year only, and then leaves the defendant; the contract is still within the statute, and no action can be sustained upon it. But suppose he serves a year and a day; is the effect of the contract entirely changed? Such an absurdity, we think, cannot possibly follow. We cannot believe, that the construction of the statute is such, that if the plaintiff serves but one year, he may collect of the defendant what those services are reasonably [253] worth; but if he serves a year and a day, he can recover nothing. But the claim is, that the entering into the defendant’s service, recognizes the contract. What contract? Clearly the one made in October preceding—invalid by reason of the statute. No new contract is claimed to have been made. The jury, from a part performance of a contract falling within the statute, cannot infer another contract not affected by the statute. A majority of the court think the plaintiff is not entitled to a new trial. The other Judges of this opinion, were Williams, Ch. J. and Storrs and Hinman, Js.