Noyes v. Moor , 1 Root 142 ( 1789 )

By the Court.

Tliis action is not within tbe statute; which extends to executory agreements and not to agreements executed on one part as tliis is; nor does the law mean to put it in the power of the defendant to take advantage of his own "wrong to impose a gross fraud upon the plaintiff, as would be the case, if after the plaintiff had procured a deed from said Bacon, etc. to the defendant and paid or given security for the land, the defendant might be at liberty to depart from bis agreement.

This statute is nearly a copy of a statute in Great Britain, made the 29th of Charles II. almost 100 years before; which by a long course of decisions had obtained a settled meaning and construction, with which the legislature of Connecticut, it must be supposed, were acquainted; and which will afford much light in the construction of ours. That a parol agreement concerning land, executed on one part is not within either the letter or the spirit of the statute which contemplated parol agreements, merely.executory, is clear; for where the money is paid, or the deed is given, and the agreement executed on one part, natural justice requires that the other part should be performed: — - And in such case, the proof of the agreement does not stand upon parol evidence only; but upon the execution on one part.

Accordingly it was adjudged at New Haven, February term, A. D. 1773, in an action of assumpsit, brought by Submit Tainter against Joseph Brockway, declaring that in consideration of £600 lawful money, which the plaintiff promised to pay the defendant for a certain farm, described in the declaration, and of $3 earnest money in part received by him, he assumed and promised to give her a deed of said farm in a fortnight, etc. which he had not done. The defendant plead the statute in bar; and that said agreement was by parol and no memorandum made of it in writing; and a demurrer to the plea. The judgment was — That the plea was sufficient; the agreement set forth in the declaration, is clearly within the statute, and the payment of the $3 earnest money, as it is called, is not such an execution on one part, as to take it out of the statute.

And it was determined at Hartford adjourned Superior Court, A. D. 1777, on a writ of error, brought by Oliver Clark v. William Brown and wife, to reverse a judgment of the County Oourt, in an action, Brown and wife v. Clark; declaring that in consideration of a deed of a certain piece of land executed to said Olark, by the wife of said Brown, when a feme sole; said O'lark assumed and promised to pay her £14 lawful money, which he had never performed. The defendant demurred to tbe declaration, and judgment of tbe County Court, that tbe declaration was sufficient, and for tbe plaintiff to recover.

Errors assigned —• 1st. Tbat there is no direct averment that said deed was ever delivered. 2d. Tbat the promise is by parol and within tbe Statute to Prevent Frauds and Perjuries. !

Judgment of the Superior Court — Tbat there is nothing erroneous, in the judgment complained of. Eor upon a general demurrer advantage is not to be taken of the statute, for there may be a memorandum in writing which may be produced in evidence, tbat is not alleged in tbe declaration. But further, this action is not within tbe statute; for it is not laid upon tbe parol agreement only, but upon tbe agreement executed on one part. Gilb. Court Chancery, 231; 1 Bac. Ab. 74 and 75; 2 Stra. 785; 1 Blac. Rep. 600; and Chapman v. Allin, adjudged at Windham, March Term, A. D. 1788, Kirby’s Reports 399.

This judgment of Noyes v. Moor was reversed in tbe Supreme Court of Errors. Tbe reasons have not been given as I have been able to find.