McDonald v. Fernald

38 A. 729, 68 N.H. 171

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1894
• Status: Published

Opinion

Chase, J.

The memorandum signed by the defendant was

sufficient to answer the requirements of the statute of frauds, P. S., c. 215, s. 2. Heading it in the light of the circumstances attending the making of it (Brown v. Whipple, 58 N. H. 229, 233), it appears that the plaintiffs were the other parties to the agreement therein proposed, and that the sums to be paid thereunder would be ascertainable by computation. In these respects the agreement resembles the one considered in Wills v. Cutler, 61 N. H. 405. Although it was unnecessary (Britton v. Angier, 48 N. H. 420; Lang v. Henry, 54 N. H. 57, 59), the consideration for the defendant’s promise was stated in the memorandum, namely, the promise of the men to remain until spring and work for the interest of the operation. This was a sufficient consideration. Wills v. Cutler, supra; White v. Woodward, 5 M. G. & S. 810. The defendant’s promise was that he would see that the men should “ have their pay in the spring,” not that only which was subsequently earned, but “their pay,” — all that would then be due to them, whenever earned. The language used aptly expresses a contract of guaranty, and leaves no uncertainty as to its scope. The promise was unconditional. It did not require •the plaintiffs to demand payment of Condon, and, failing to get •it, to notify the defendant before he would become liable to pay them. Dearborn v. Sawyer, 59 N. H. 95; Bank of Newbury v. Sinclair, 60 N. H. 100.

The defendant’s promise was not affected by the statute (P. S., c. 271, s. 3) prohibiting the doing of business of one’s secular ■calling on Sunday. The proposition made by the defendant was not accepted by the plaintiffs until Monday, when they went to woi’lc Until that time it was a mere proposition. Then, being accepted, it became a contract. The fact that the negotia tion begun on Suuday did not render the contract invalid. Stackpole v. Symonds, 23 N. H. 229; Merrill v. Downs, 41 N. H. 72; Provenchee v. Piper, ante, p. 31.

Case discharged.

All concurred.