Mack v. Bragg

30 Vt. 571

• Court: Supreme Court of Vermont
• Decided: March 15, 1858
• Status: Published

Opinion

The opinion of the court was delivered by

Poland, J.

The judgment below, upon the facts reported, was clearly right. The contract between the plaintiff' and the defendant for the plaintiff’s son to live with, and in the service of the defendant, until he was twenty-one years of age, was one of that class of contracts which by numerous cases have been held to be entire, and it is well settled that no action can be sustained for part performance of them, unless the contract has been ended by the other party in some way, or its fulfilment prevented by sickness, or other cause than the fault of the party seeking to recover. The auditors find that the plaintiff’s son lived with the defendant nearly a year, when he left his service, without cause, and against the defendant’s will. But the plaintiff claims that he can recover, because the contract, not being to be performed within a year, was within the statute of frauds, and could not have been enforced by suit. But such contracts are not made void by /the statute, and so far as they have been performed, are as binding as if in writing, and in no case has a party who has performed services, or paid money, under such a contract, been permitted to ¡recover back his payment or part performance, when he himself had broken off the contract, and the other party was willing to perform on his part.

The case of Philbrook v. Belknap, 6 Vt. 383, was exactly the case at bar, and has been followed in all subsequent cases where the question has arisen. The same principle has been equally applied to contracts for the sale, or letting of real estate, which are within the statute, and rest wholly in parol; Shaw v. Shaw, 6 Vt. 69; Hawley v. Moody, 24 Vt. 603.

Cases almost without number might be cited where the same has been held in both classes of contracts in this state, and in the other states, and in England.

The judgment of the county court is affirmed.