ERROR to the Circuit Court of the United States for the Northern District of Illinois.
On the twenty-first day of July, 1869, Edwin I. Sherburne, Edwin Walker, and Charles B. Farwell entered into a written contract with the canal commissioners of the State of Illinois, for the construction of a lock and dam in the Illinois River, near the city of Henry, in which they agreed to commence the work on or before the first day of August, 1869, and complete it by the first day of September, 1871.
Sherburne shortly after assigned his interest in this contract to James K. Lake, and Lake, Farwell, and Walker assigned the same, with the approval of the commissioners, to Willard Johnson, plaintiff below. But while Farwell, Lake, and Walker were the contractors, they made an agreement between themselves, in writing, by which, among other things, Walker was 'to furnish all the stone necessary for the construction of the lock and dam, to be by him delivered on board of canal-boats at Henry, as the same might be required in the progress of the work, to be of the description required for said work;' and the prices that he was to receive for the various kinds of stone so delivered were settled. It is alleged by Johnson, that, after the contract with the commissioners had been assigned to him, Walker agreed with him to furnish the stone for the work in the same manner and on the same terms as in this contract with his former partners. And that, by reason of his failure to do so, he, the plaintiff, was greatly damaged; and for that he brought this action. A verdict and judgment for $6,500 were rendered against defendant Walker, to which he prosecutes the present writ of error.
The errors assigned relate exclusively to exceptions taken to the charge of the judge, and to his refusal to charge as requested by the defendant. They are fully stated in the opinion of the court.
Mr. Melville W. Fuller for the plaintiff in error.
The contract was void under the Statute of Frauds. Browne, Stat. Frauds, sects. 279, 283; Packet Company v. Sickles, 5 Wall. 580; Birch v. The Earl of Liverpool, 9 Barn. & Cress. 392; Dobson and Another v. Espie, 2 H. & N. 81; Baydell v. Drummond, 11 East, 142.
The alleged parol contract to deliver the stone by railroad, instead of by canal-boats as agreed upon in the original contract, was without consideration, and therefore void. Gross v. Nugent, 5 Barn. & Adol. 65; Lattimore v. Hensen, 14 Johns. (N. Y.) 330; Munroe v. Perkins, 9 Pick. (Mass.) 295; Adams v. Nichols, 19 id. 275; Crowley v. Vitley, 7 Ex. 319; Payne v. New. S.C.. Co., 10 id. 291; Thurston v. Ludwig, 6 Ohio St. 1; Hunt v. Barfield, 19 Ala. 117; Gerhard v. Bates, 2 El. & Bl. 486; Swain v. Seamans, 9 Wall. 254.
It was also void, because entered into after breach in the original contract.
Mr. Francis Kernan, contra.
If by the terms of a contract, the subject-matter, and the situation of the parties, it is shown that the contract can, and reasonably may in its execution, be required to be performed within a year, it is not within the Statute of Frauds. Browne, Stat. Frauds, sects. 274, 275, 278 a, 279, 281, 286, and cases cited; White v. Murtland, 71 Ill. 250; Kent v. Kent, 62 N. Y. 564; Morley v. Noblett, 42 Ind. 85; Larimer v. Kelly, 10 Kan. 298; Gault v. Brown, 48 N. H. 183; Peters v. Westboro', 19 Pick. (Mass.) 365; Blake v. Cole, 22 id. 99; Somerley v. Buntin, 118 Mass. 286; Blair v. Walker, 39 Iowa, 410; Greene v. Harris, 9 R. I. 401; Hodges v. Richmond, id. 487; Souch v. Strawbridge, 2 C. B. 811; Plimpton v. Curtis, 15 Wend. (N. Y.) 336; Peter v. Compton, 1 Sm. L. C. 432.
There was no error in the instruction of the court below, that it was competent for the parties to modify the terms of their original contract by agreeing that the stone should be deliered by railroad instead of by canal-boats. Their mutual promises were a sufficient consideration. Law v. Forbes, 18 Ill. 568; Bishop v. Busse, 69 id. 403; Cooke v. Murphy, 70 id. 96; Carrier v. Dilworth, 59 Pa. St. 406; Hill v. Smith, 34 Vt. 535; Monroe v. Perkins, 9 Pick. (Mass.) 298.
MR. JUSTICE MILLER delivered the opinion of the court.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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