Branding v. Sargent , 33 N.H. 239 ( 1856 )

Bell J.^*

The court are in no situation to decide that Fisherville is not a good and sufficient description of a place in Concord and Boscawen, as alleged. Whether there is a place called by that name, where it is situate, what are its limits, if it has any, are matters of fact, to be determined by a jury upon such evidence as the parties may lay before them. It is in no sense a matter of law, of which a court can take judicial cognizance. What is included in a name descriptive of a place, not being a public corporation, is always matter for a jury. Claremont v. Carleton, 2 N. H. 373; Com. Ld. & Ten. 75; Doe v. Burt, 1 D. & E. 701, and see Peak Ev. 12; 1 Ph. Ev. 272; 1 Cow. & H., notes 241, &c. Upon the demurrer no exception can be taken on this ground.

It is admitted by the case, that the contract relied on by the plaintiff is by parol and not in writing. And the question then arises, whether, under the statute of frauds, any action can be maintained upon it. The language of the Revised Statutes (Comp. Laws 459, sec. 9,) is much the same in this respect as the Stat. 29 Car. 2, ch. 3, sec. 4, li to charge any person upon any agreement that is not to be performed within one year from the time of making it, unless the agreement, &c., shall be in writing,” &e.

The authorities cited for the plaintiff have established elsewhere the rule that the statute does not apply to any contract, unless by its express terms, or by reasonable construction, it is not be performed, that is, is incapable in any event of being performed within one year from the time it is made.

If by its terms, or by reasonable construction, the contract can be fully performed within a year, although it can only be done by the occurrence of some contingency by no means likely to happen; such as the death of some party or person referred to in the contract, the statute has no application, and no writing is necessary.

Though either of the parties may have it in his power to put an end to a contract within a year, yet, if independent of the exercise of such a power, the agreement cannot be performed within a year, it must be in writing.

If the agreement can be fully performed by either of the parties within the year, and it is so performed, the agreement of the other party is not within the statute, though it may be impossible to perform it within a year.

These decisions are almost equivalent to a repeal of this clause of the statute; but as they met the approval of the courts generally, and may be regarded as the settled construction of the statute, they may properly be considered as adopted by our legislature when the statute was reenacted.

When these principles are applied to the present case it is found not to fall within the statute, because it is evident that if the defendant had died within a year from the making of the contract, having kept his agreement while he lived, his contract would have been fully performed.

If the plaintiff, instead of a verbal agreement to pay two hundred dollars in five years, as the consideration of the defendant’s contract, as might naturally be understood from the declaration, had agreed to give at once his notes for two hundred dollars payable in five years, and the notes were made accordingly, the whole contract might be valid without any other writing, on the ground that the agreement on one side was to be performed, and was performed, within a year.

It does not, however, seem to be material to show that to be the true state of facts, and it could not be done effectively without an amendment of the declaration.

Demurrer overruled.

* Perley, C. J., and Bowler, J., Laving been of counsel, did not sit.