Dougherty v. Rosenberg

McKinstry, J.: The complaint alleges that plaintiff, being about to commence separate suits against Michael Beese (defendant’s testator), J. W. Brittain, and D. V. B. Henarie for the enforcement of certain assessment liens against each of three several lots of land owned by said persons respectively. Reese (on the twentieth day of May, 1870) verbally promised plaintiff, that in consideration that plaintiff would not bring the suit to enforce the lien against the lot owned by him, but would “ altogether forbear” to bring such suit, and would commence and prosecute suits against Brittain and Henarie for the enforcement of said assessments against their lots respectively, [36]and succeed in recovering final judgments in said suits against Brittain and Henarie, he, the said Reese, would, upon such final recovery in said suits, pay to the plaintiff the amount of said assessment on the lot so owned by him, to wit, the sum of nine hundred and ninety-seven dollars and sixty-eight cents, and interest thereon, etc.

The defendants demurred. The Court below sustained the demurrer, and, plaintiff declining to amend, rendered the final judgment in favor of defendants, from which plaintiff has appealed. It is claimed by respondents that the agreement set forth in the complaint is void under the statute of frauds, in force when the agreement was made. The twelfth section of the statute reads: “In the following cases every agreement shall he void, unless such agreement, or some note or memorandum thereof expressing the consideration, be in writing, and subscribed by the party to he charged therewith: 1. Every agreement that by its terms is not to be performed within one year from the making thereof.” (Stats. 1850, p. 267.)

It is urged, that if any part of the agreement is not to he performed within a year, the entire agreement is void; that where, by its terms, it can not be completely performed “ on both sides” (Roadwell v. Getman, 2 Denio, 89) until more than a year has elapsed, the case falls within the express words of the enactment. And—applying these principles to the case—it is said one of the promises of plaintiff is, by its terms, not he performed within the year, to wit, the promise “ always to forbear” to bring the suit. But the agreement of plaintiff was “ altogether,” not “ always,” to forbear, and an agreement to refrain altogether for an indefinite time is not within the operation of the statute. (Browne on the Statute of Frauds, 279.) As we construe the agreement, however, the promise of plaintiff was altogether to forbear to bring suit to foreclose the lien against the lot of Reese until he should recover final judgments in the actions against Brittain and Henarie—events which might occur within the year. Such was the evident intent of the parties. There is nothing in their language to indicate they intended, in case Reese did not pay when final judgments should be entered against Brittain and Henarie, the plaintiff should further forbear. It can not be said, therefore, that by its terms the contract was