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WALKER v. JOHNSON.

October 1, 1877

WALKER
v.
JOHNSON.



ERROR to the Circuit Court of the United States for the Northern District of Illinois. On the twenty-first day of July, 1869, Edwin I. Sherburne, Edwin Walker, and Charles B. Farwell entered into a written contract with the canal commissioners of the State of Illinois, for the construction of a lock and dam in the Illinois River, near the city of Henry, in which they agreed to commence the work on or before the first day of August, 1869, and complete it by the first day of September, 1871. Sherburne shortly after assigned his interest in this contract to James K. Lake, and Lake, Farwell, and Walker assigned the same, with the approval of the commissioners, to Willard Johnson, plaintiff below. But while Farwell, Lake, and Walker were the contractors, they made an agreement between themselves, in writing, by which, among other things, Walker was 'to furnish all the stone necessary for the construction of the lock and dam, to be by him delivered on board of canal-boats at Henry, as the same might be required in the progress of the work, to be of the description required for said work;' and the prices that he was to receive for the various kinds of stone so delivered were settled. It is alleged by Johnson, that, after the contract with the commissioners had been assigned to him, Walker agreed with him to furnish the stone for the work in the same manner and on the same terms as in this contract with his former partners. And that, by reason of his failure to do so, he, the plaintiff, was greatly damaged; and for that he brought this action. A verdict and judgment for $6,500 were rendered against defendant Walker, to which he prosecutes the present writ of error. The errors assigned relate exclusively to exceptions taken to the charge of the judge, and to his refusal to charge as requested by the defendant. They are fully stated in the opinion of the court.

The opinion of the court was delivered by: Mr. Justice Miller delivered the opinion of the court.

Mr. Melville W. Fuller for the plaintiff in error.

The contract was void under the Statute of Frauds. Browne, Stat. Frauds, sects. 279, 283; Packet Company v. Sickles, 5 Wall. 580; Birch v. The Earl of Liverpool, 9 Barn. & Cress. 392; Dobson and Another v. Espie, 2 H. & N. 81; Baydell v. Drummond, 11 East, 142.

The alleged parol contract to deliver the stone by railroad, instead of by canal-boats as agreed upon in the original contract, was without consideration, and therefore void. Gross v. Nugent, 5 Barn. & Adol. 65; Lattimore v. Hensen, 14 Johns. (N. Y.) 330; Munroe v. Perkins, 9 Pick. (Mass.) 295; Adams v. Nichols, 19 id. 275; Crowley v. Vitley, 7 Ex. 319; Payne v. New. S. C. Co., 10 id. 291; Thurston v. Ludwig, 6 Ohio St. 1; Hunt v. Barfield, 19 Ala. 117; Gerhard v. Bates, 2 El. & Bl. 486; Swain v. Seamans, 9 Wall. 254.

It was also void, because entered into after breach in the original contract.

Mr. Francis Kernan, contra.

If by the terms of a contract, the subject-matter, and the situation of the parties, it is shown that the contract can, and reasonably may in its execution, be required to be performed within a year, it is not within the Statute of Frauds. Browne, Stat. Frauds, sects. 274, 275, 278 a, 279, 281, 286, and cases cited; White v. Murtland, 71 Ill. 250; Kent v. Kent, 62 N. Y. 564; Morley v. Noblett, 42 Ind. 85; Larimer v. Kelly, 10 Kan. 298; Gault v. Brown, 48 N. H. 183; Peters v. Westboro', 19 Pick. (Mass.) 365; Blake v. Cole, 22 id. 99; Somerley v. Buntin, 118 Mass. 286; Blair v. Walker, 39 Iowa, 410; Greene v. Harris, 9 R. I. 401; Hodges v. Richmond, id. 487; Souch v. Strawbridge, 2 C. B. 811; Plimpton v. Curtis, 15 Wend. (N. Y.) 336; Peter v. Compton, 1 Sm. L. C. 432.

There was no error in the instruction of the court below, that it was competent for the parties to modify the terms of their original contract by agreeing that the stone should be deliered by railroad instead of by canal-boats. Their mutual promises were a sufficient consideration. Law v. Forbes, 18 Ill. 568; Bishop v. Busse, 69 id. 403; Cooke v. Murphy, 70 id. 96; Carrier v. Dilworth, 59 Pa. St. 406; Hill v. Smith, 34 Vt. 535; Monroe v. Perkins, 9 Pick. (Mass.) 298.

The first error arises upon the proposition of defendant, that the contract, being one not to be performed within a year from the time it was made, and resting only in parol, was void, and could not sustain the action. Evidence was given which tended to show that the agreement between plaintiff and defendant was made early in November, 1869, and renewed or modified in April, 1870. As by the terms of the original contract with the canal commissioners the work was to be completed on or before Sept. 1, 1871, defendant insisted that his contract for delivery of stone had the same time to ran; and his counsel asked the court to instruct the jury that it was void, if it appeared from the Farwell, Lake, and Walker contract that it was not the intention and understanding of the parties that the same should be performed formed within the space of one year from the making of the verbal agreement between plaintiff and defendant.

The court refused this instruction, and told the jury that if it appeared from the contract itself that it was not to be performed, or was not intended to be performed, within a year, it was void; but that if it was a contract which might have been performed within a year, and which the plaintiff, at his option, might have required the defendant to perform within a year, it was not within the statute.

We think the court ruled correctly, both in what it charged and in what it refused.

1. In order to bring a parol contract within the statute, it must appear affirmatively that the contract was not to be performed within the year. We have had occasion to examine this question very recently in the case of McPherson v. Cox (supra, p. 404). We said, in that case, that the statute 'applies only to contracts which, by their terms, are not to be performed within the year, and not to contracts which may not be performed within that time.' The court said, in regard to that case, which was a contract by a lawyer to conduct a suit in court, that there was nothing to show that it could not have been fully performed within a year. So, in this case, the lock and dam were to be completed on or before Sept. 1, 1871. Clearly, the contractor had the right to push his work so as to finish it before November, 1870, which would have been within a year from the date of Walker's contract with plaintiff.

If plaintiff had a right to do his work within that time, he had a right to require of defendant to deliver the stone necessary to enable him to do it. There is no error in the action of the court on this branch of the subject.

2. It will be observed that, by the agreement of Walker with his partners, he was to deliver at Henry in canal-boats. Evidence was given tending to show that, in the spring of 1870, it was agreed between him and plaintiff that he should deliver by railroad; and the court charged the jury that it was competent for the parties to change the contract in that regard, if they chose; and ...


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