Folsom v. Great Falls Man. Co.

9 N.H. 355

• Court: Superior Court of New Hampshire
• Decided: December 15, 1838
• Status: Published

Opinion

Parker, C. J.

The contract, as stated in the second count, is clearly within the statute of frauds. 5 N. H. Rep. 130, Lane vs. Shackford, and the authorities cited for the defendants.

If the plaintiff could recover, it must be on the first or third counts.

Laying out of the case any thing in those counts, to show that the contract, as there stated, is within the statute, and viewing it as a contract that the plaintiff should build a house on the defendants’ land, and that the defendants should pay him the amount expended, if he should so elect, we are of the opinion that the plaintiff is not entitled to recover. Taking that as the whole original contract—upon a new contract, subsequently made between the parties, the plaintiff purchased the land, and received from the defendants a deed of it. This must be held to be a waiver of the former contract, unless the presumption is expressly negatived. An express contract that the defendants would still be holden by the former agreement, and pay for the expenses of the house, and permit the plaintiff to hold it as his own, might perhaps be sufficient. But this could not be supposed to be the understanding of the parties, unless there was evidence offered of such new contract. There is no suggestion that when the plaintiff received the deed he paid for the value of the house, as well as the land.

Without a contract to continue the former agreement, the purchase and sale of the land on which the house was erected would show that the plaintiff had concluded no longer to rely upon the former contract, and had elected to waive all claims upon the defendants for the expenses of building ; for having taken the title in fee simple upon a subsequent purchase of the land only, it could not have been his expectation that the defendants were to own the house ; or to pay him for building it, and permit him to own it. Besides, if that agreement was to be regarded as continued, on the terms on which it was originally made, the effect of it would be that the defendants, having paid for the building, were to own the land and building. It would be necessary, therefore, in order to carry it into effect, that the plaintiff should reconvey the land : and it would, after the taking of the deed by the plaintiff, be a contract for the conveyance of land, and thus within the statute. And, moreover, in that case, how was the plaintiff to obtain a repayment of the sum he paid for the land? That was not in the original contract. Judgment on the verdict.