Baker v. Lee

Carpenter, J. The plaintiff commenced cutting wood and timber under a claim of right on land which the defendant claimed to own. The defendant caused an injunction to be served on the plaintiff, restraining him from removing the wood and timber. Pending the injunction suit, and while the plaintiff was making a defense, the parties settled —the plaintiff agreeing to make no further defense and to abandon his claim to the wood and timber, in consideration [146] of which the defendant agreed to pay him the sum of $65. The plaintiff performed his agreement but the defendant refused to pay as he had agreed. The defense to a complaint setting up these facts was the statute of limitations —that the action was not commenced within three years. To that defense the plaintiff demurred. The court below overruled the demurrer and rendered judgment for the defendant. The plaintiff appealed. The court decided that the case was within the seventh section of the statute of limitations, (Gen. Statutes, p. 494,) which is as follows:—“ No action founded upon any express contract or agreement not reduced to writing * * * shall be brought but within three years, &c.” The plaintiff contends that this section does not apply, but that the case is within the fourth section, which provides that debt on simple contract may be brought within six years. Is this an action on a contract within the meaning of the seventh section, or is it an action of debt on a contract under the fourth section? An action of debt on simple contract, prior to the passage of the Practice Act, would' lie in all cases where a contract had been performed by the plaintiff and nothing remained to be done but the payment of money by the defendant. So also in such cases an action of assumpsit would lie. The Practice Act has made no change in the application of the statute of limitations. Under that act the action is for a money demand founded upon an executed simple contract. The facts bring the case literally within the definition of debt on simple contract or general assumpsit. The plaintiff fully performed his contract and rendered to the defendant the entire consideration for his promise; and nothing remains to be done but for the defendant to pay the money as he agreed. An action on a contract within the seventh section we understand to mean an action on an executory contract; as where one party is ready and willing to perform and the other party refuses to perform. In such cases an action is brought, not to recover a sum certain, fixed and made cer [147] tain by the terms of the contract, but uncertain or unliquidated damages for a non-performance. The judgment is reversed and a new trial granted. In this opinion the other judges concurred.