Butler v. Shehan

Mr. Presiding Justice Cartwright delivered the" opinion of the Court. Appellant brought this suit before a justice of the peace against appellee and recovered a judgment there, but an appeal having been taken to the Circuit Court, the jury were instructed that the contract sued on was void under the statute of frauds, and they were directed to return a verdict for appellee. This was done and judgment entered on the verdict. The facts before the jury upon which the court gave the instruction were as follows: In 1893, plaintiff had a mare which he thought of breeding to a stallion called Prince Edward. He met defendant in a saloon at Galesburg, and defendant told him that if he would breed the mare to a stallion called Roscoe Conkling, and the issue should be afilly, or as they termed it “ a mare colt,” he would pay $150 for such filly, but would want plaintiff to keep her four months. A week or ten days afterward the parties met in a saloon in Aliona, and the contract was there referred to, when defendant said to plaintiff: “How this is no monkey business,” and plaintiff replied, “ Ho, it is not,” and defendant said “ All right.” Plaintiff bred the mare to Roscoe Conkling, and the issue was a filly which plaintiff kept four months and then tendered to defendant, who refused to accept the filly or pay the money. The contract was made between June 12 and July 25,1893, and the offer to deliver the filly was on October 12, 1891. The period of gestation in mares is about eleven months. The only evidence offered was on the part of plaintiff, and there was no contradiction of his testimony as to the contract. In making this contract the parties contemplated its fulAliment in about fifteen months from the date on which the mare should be successfully bred. In the course of na tare the contract could not be performed within a year from the time when it was entered into. It was verbal, and therefore within the statute of frauds, so that no action could be maintained upon it. Like contracts were held within the statute in the following cases: Lockwood v. Barnes, 3 Hill 128; Graves v. Cook, 88 Ind. 169. It is insisted that the contract was not within the statute because plaintiff in his testimony said that the money was due him when the mare had a foal. He did attempt to put a construction of that kind on the agreement in testifying but that was plainly not the contract, and he did not so construe it before that time. He was to perform on his part an agreement to be completed in about fifteen months before he would be entitled to payment. It is also argued that if the contract was within the statute plaintiff should have been allowed to recover on a quantum meruit for such damages as he sustained by breeding his mare under defendant’s procurement to a stallion not of his choice, and Butcher Steel Works v. Atkinson, 68 Ill. 421, is relied on in support of the argument. The doctrine of that case does not apply here since defendant received nothing and there could be no qua/ntum meruit. So far as damages ^resulting to plaintiff from his compliance with the contract are concerned, to allow a recovery of damages for the breach of a contract is to enforce the contract, and this wás one that could not be enforced by action at law. • But it is further insisted that the contract was taken out of the statute by the fact that plaintiff had performed his part of it, and nothing remained to be done except for defendant to perform on his side. Part performance, however, does not take a contract out of the operation of the statute of frauds in a court of law, but that rule is confined to equity. Warner v. Hale, 65 Ill. 395; Wheeler v. Frankenthal, 78 Ill. 124; Creighton v. Sanders, 89 Ill. 543. It is assigned as error that the court refused plaintiff’s counsel the right to argue the case to the jury. That was one of the grounds stated in the motion for a new trial, but the record does not show that anything of that kind occurred, and the question does not arise. The judgment will be affirmed.