Duff v. Snider

Chalmers, J., delivered the opinion of the court. The defendant in error, Snider (plaintiff below), having leased a tract of land from Mrs. Duff for four years, contracted with her to erect a house thereon, to be used and occupied by him during the term, and to be paid for by her at its expiration, at a valuation to be affixed by a disinterested party. The building of the house and the payment therefor had nothing to do with the rent of the land, which was fixed at a price per acre, to be paid by the tenant in money. The house was built in the spring of 1872, shortly after the making of the contract. Snider occupied it during his lease, which expired Jan. 1, 1875; paying his rents in full. Mrs. Duff refusing to pay for the house, he instituted a proceeding on Jan. 15, 1875, to enforce a mechanic’s lien for the amount due; but afterwards, conceiving that this remedy was either barred or misconceived, he sought and obtained leave to amend. his action, by filing a declaration in assumpsit containing counts for the price of the house, and for work and labor and materials furnished. The action of the court in allowing this amendment is the first error assigned. There was no error in this. By § 621 of Code, amendments “in the form of action,” at any time before verdict, “ so as to bring the merits of the controversy between the parties fairly to trial,” are expressly authorized. Upon motion, all the testimony in relation to the contract for building and paying for the house was excluded, upon the ground that, inasmuch as the agreement was verbal, and contemplated a payment to be made more than twelve months after its date, it was void under the Statute of Frauds. The plaintiff below excepted to this ruling ; but, as he ultimately obtained a verdict oh other grounds, and therefore took no appeal, we are precluded from passing on its correctness. We will remark that a doctrine has grown up in England since the decision in the ease of Donellan v. Read (in 1832), 3 B. & Ad. 899, and has been extensively followed in this country, that, where the thing to l?e done is to be completed and actually is completed within a year, a suit may be maintained upon the contract for the price agreed to be paid, though by the terms of the agreement payment was deferred [252] beyond twelve months ; or, in other words, that, where goods are delivered or labor performed upon a longer credit than twelve months, suit may be maintained upon the contract for the price. Many other courts, however, of high repute, notably in New York and Vermont (Broadwell v. Getman, 2 Denio, 87, and Pierce v. Paine, 28 Vt. 34), have repudiated this doctrine, and have declared that the test must be whether the defendant in the action obligated himself to perform his portion of the agreement within a year; and that the contract to pay must stand upon the same footing in this respect as the contract to render service or deliver goods. The learned judge below seems to have adopted the latter view; and, while we are not required by the record to pass upon his ruling, we will remark, that ordinarily the question would seem only to be of practical value as one of pleading, since all the authorities agree that, where the consideration has been received, there may be a recovery of the price under the common counts. Mr. Browne says, “ In such cases it is a mere point of form in bringing the action, the plaintiff’s right to recover on the indebitatus assumpsit (which count is uniformly found to have been inserted in the declaration) being clear.” Browne on the Statute of Frauds, § 290. In the notes to the case of Peter v. Compton, in 1 Smith’s Lead. Cas. 438, it is said to be universally conceded that no one can receive or enjoy the goods or services of another, and then rely upon the Statute of Frauds as an excuse for not paying for them; and that the weight of authority seems to be, that the recovery in such eases must be according to the terms of the contract, and not merely for what the consideration would have been reasonably worth, if estimated at its market value, without reference to the price set upon it by the parties. It is unnecessary to decide whether this principle would justify a recovery of the price of a house built upon another’s land, under a void contract, without proof of a taking possession or use of the house by the land-owner (which this record leaves doubtful) ; because the verdict and judgment here are sustained by other proof in the record. It was proved that, in 1873-74, when Snider was about to make some additions to [253] the house, Mrs. Duff told, him that she was afraid that he was going to make the house too costly ; but that, if he would do nothing further, she would pay for.it; and Snider thereupon forebore to make the additions. There was no time fixed by this agreement for making the payment; and it is well settled that, when no time of performance' is fixed, the contract will never be presumed to be in violation of the Statute of Frauds. It is argued that this agreement to pay was a nude pact, and therefore void; because the house, already affixed to the soil under the void contract, had become the property of the landowner, and the promise to pay for it was without consideration. This is erroneous. Conceding that the original contract was incapable of supporting an action, it was nevertheless good as a parol license to the tenant to build; and, wherever the owner of the soil has given permission to the tenant to erect buildings, they may be removed during the term. Stillman v. Hamer, 7 How. (Miss.) 421. Nor was this agreement to pay barred by the Statute of Limitations, as argued by counsel for the appellants, whether we regard it as an express contract and governed by the six years’ statute, or as an open account and barred in three. § 2151 Code 1871. There was no error, therefore, in giving the first instruction for the plaintiff. The second instruction seems unsupported by any facts in. evidence, but could not have affected the result, which was justified by the proof, and the law announced in the first. There was no error, under the facts proved, in refusing the charges asked by Mrs. Duff, which were refused. Those given for her fully presented to the jury the merits of her defence. During the argument of the cause before the jury, a dispute arose between counsel as to a statement made by a witness, when the circuit judge from the bench declared that the view of the testimony contended for by counsel for the plaintiff was correct. Exception was taken to this remark, and it is assigned for error here. It is not within the province of the judge to settle disputes about the testimony, nor to lend to either side the sanction of his concurrence before the jury. The jury alone must determine what was the testimony; and the utmost power of the judge, when a difference arises, is to [254] recall the .witness. Even this power should be ;sparingly exercised. The verdict in this case being manifestly right, we will not reverse it. Judgment affirmed.