1. A parol contract for the delivery of materials is not void
under the statute of frauds unless it appears affirmatively that it
was not to be performed within a year. If performance by the
promisor can be required by the promisee within a year, the
contract is valid.
2. A subsequent verbal agreement varying the manner of
delivering them is binding.
3. The comments of the judge in his charge to the jury as to the
circumstances under which the defendant might be entitled to
damages against the plaintiff cannot be a ground of error when
there was no such issue and when the defendant could not have been
thereby prejudiced.
4. The court is not bound, at the request of counsel, to give as
instructions philosophical remarks copied from textbooks, however
wise or true they may be in the abstract or however high the
reputation of the authors.
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.
Page 96 U. S. 425
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.
Page 96 U. S. 426
MR. JUSTICE MILLER delivered the opinion of the Court.
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 run, 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
Page 96 U. S. 427
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.
96 U. S. 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 that if the
jury found that defendant did so agree, he was bound by such
agreement as he made, if any.
The original contract between Johnson and Walker was in
Page 96 U. S. 428
parol, and if the parties, for their mutual convenience or for
no good reason at all, choose a delivery by rail, both of them
consenting thereto, we think that the change in the mode of
delivery became a part of the contract.
3. There was evidence tending to show that while defendant was
performing part of the contract, he received notice from plaintiff
that he would take no more stone from him, and also evidence that,
shortly after this, the parties had an interview in which this
notice was waived, and Walker agreed to go on with the contract. On
this part of the case the court said:
"If the testimony satisfies you that the defendant did, after
the notice of the 12th of May, recognize the contract as still in
force and promise the plaintiff that he would go on and complete
the same, the defendant cannot now claim as a defense to this
action that said notice released him from the performance of the
contract."
"If, on the contrary, you are satisfied that the defendant made
no agreement after the notice to stop on the 12th of May,
recognizing the contract as still in force or promising to perform
it or continue it in force, then the defense may be considered made
out, although the notice to suspend might entitle the defendant to
damages; but I do not think it necessary to discuss the question of
the defendant's damages."
The court, however, did, in answer to a suggestion of counsel
for defendant that the latter would have a right to damages for the
withdrawal of the contract by plaintiff, proceed to make some
remarks on that subject to which defendant excepts, and which he
now assigns for error.
We do not see anything in these remarks to complain of except
that they were irrelevant to any issue in the case. There was no
plea or cross-demand under those damages could have been passed
upon by the jury. As they in nowise prejudiced defendant in the
present action, we are not called on to consider further their
soundness as matter of law.
4. The court was asked to instruct the jury
"that verbal admissions, while, if deliberately made and
precisely identified, they frequently furnish satisfactory
evidence, are to be received with great caution, and the attention
of the jury should be directed, in passing upon alleged verbal
admissions, to whether
Page 96 U. S. 429
the witnesses testifying thereto distinctly understood the party
charged in what he said and whether they have or have or have not,
intentionally or unintentionally, failed to express what was
actually said."
But the court refused said instruction.
This is the ground of the last assignment of error.
There is nothing in the testimony, as we find it in the bill of
exceptions, to which such a charge could apply. There are no
admissions, properly so called, of defendant relied on in the case.
The testimony in regard to the renewal of the contract after
plaintiff's letter to defendant, that he would receive no more
stone from him, is not an admission; it is a conversation between
plaintiff and defendant in which the contract is renewed or the
abandonment waived. It is explicitly stated by plaintiff that
defendant agreed to recommence the delivery of stone and complete
the contract. Whatever else this may be, it is no admission. This
word, in the sense of the quotation from Greenleaf, asked by
counsel as a charge means an admission by a party of some existing
fact or circumstance which tells against him in the trial, and does
not relate to the terms in which a substantive verbal contract is
made by the parties.
Besides, it is apparent that the attention of the jury was
directed by the court to all the matters essential to their
understanding the case, and we do not admit that a court is bound
to give to the jury, at the instance of counsel, every
philosophical remark found in textbooks of the law, however wise or
true they may be in the abstract or however high the reputation of
the author.
We find no error in the record, and the judgment of the circuit
court is
Affirmed.
