Hill v. Hooper

Massachusetts Supreme Judicial Court

Hill v. Hooper

67 Mass. 131

CourtMassachusetts Supreme Judicial Court

DecidedMarch 15, 1854

StatusPublished

This text of 67 Mass. 131 (Hill v. Hooper) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hill v. Hooper, 67 Mass. 131 (Mass. 1854).

Pincite

Opinion

Metcalf, J.

The court are of opinion that this action cannot be maintained. The statute of frauds (Rev. Sts. c. 74, § 1,) enacts that no action shall be brought upon any agreement that is not to be performed within one year from the making thereof, unless the promise, contract or agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing. And it is the settled construction of this clause of the statute, that unless the agreement can be completely performed within a year, no action can be maintained on it. This was first decided in Boydell v. Drummond, 11 East, 142; and that decision has been confirmed by the English and American courts, in numerous cases. We refer to a few of them which most nearly resemble the case before us. Birch v. Earl of Liverpool, 9 B. & C. 392. Sweet v. Lee, 4 Scott N. R. 77. Roberts v. Tucker, 3 Exchequer Reports, 632. Giraua v. Richmond, 2 C. B. 835. Drummond v. Burrell, 13 Wend. 307. Now, as it is impossible that the agreement, declared on in the present case, could have been completely performed within a year from the making of it, no action can be maintained on it.

There are cases in which it has been decided, when agreements within this clause of the statute have been terminated or waived, after partial performance, that an implied contract may be raised, on which one party may be held to pay the other for the goods received or the services rendered, before such termination or waiver. But the action, in such cases, must be brought , on the implied and not on the express contract. Mavor v. Pyne, 2 Car. & P. 71, and 3 Bing. 285. Shute v. Dorr, 5 Wend. 204. Whether the present plaintiff could recover, on an implied contract, as for work and labor done by his son for the defendants, is a question on which we express no opinion. It is clear, on the authorities, that he cannot maintain this action. Plaintiff nonsuit.

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Metcalf, J.

The court are of opinion that this action cannot be maintained. The statute of frauds (Rev. Sts. c. 74, § 1,) enacts that no action shall be brought upon any agreement that is not to be performed within one year from the making thereof, unless the promise, contract or agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing. And it is the settled construction of this clause of the statute, that unless the agreement can be completely performed within a year, no action can be maintained on it. This was first decided in Boydell v. Drummond, 11 East, 142; and that decision has been confirmed by the English and American courts, in numerous cases. We refer to a few of them which most nearly resemble the case before us. Birch v. Earl of Liverpool, 9 B. & C. 392. Sweet v. Lee, 4 Scott N. R. 77. Roberts v. Tucker, 3 Exchequer Reports, 632. Giraua v. Richmond, 2 C. B. 835. Drummond v. Burrell, 13 Wend. 307. Now, as it is impossible that the agreement, declared on in the present case, could have been completely performed within a year from the making of it, no action can be maintained on it.

There are cases in which it has been decided, when agreements within this clause of the statute have been terminated or waived, after partial performance, that an implied contract may be raised, on which one party may be held to pay the other for the goods received or the services rendered, before such termination or waiver. But the action, in such cases, must be brought , on the implied and not on the express contract. Mavor v. Pyne, 2 Car. & P. 71, and 3 Bing. 285. Shute v. Dorr, 5 Wend. 204. Whether the present plaintiff could recover, on an implied contract, as for work and labor done by his son for the defendants, is a question on which we express no opinion. It is clear, on the authorities, that he cannot maintain this action. Plaintiff nonsuit.

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Bluebook (online)

67 Mass. 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hill-v-hooper-mass-1854.

Opinion

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