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Page:Harvard Law Review Volume 1.djvu/307

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Coram Thayer, J.

Bispham v. Brown.

The opinion contains a sufficient statement of the facts.

The plaintiff sues in contract, first, on an oral agreement by which he undertook to do certain work for the defendant upon his request, and the defendant, in consideration thereof, was to do certain work for the plaintiff, — alleging performance by the plaintiff and a refusal to perform by the defendant; and, second, for work and labor. The answer to both counts is a general denial. At the trial, at the close of the plaintiff’s testimony, the Court ruled that the action could not be maintained upon either count, and directed a verdict for the defendant. The case comes up on exceptions to these rulings.

It appears that the plaintiff and defendant orally agreed on April 5, 1882, that the plaintiff should convey to defendant two houses, and that the defendant, in consideration thereof, should pay the plaintiff $5,000 and give him a lease of a certain hall for five years. By April 10, the deed and lease were given, the money paid, and the agreement, so far, was fully executed.

But it further appears that on the same fifth of April, “after the above agreement was made, but during the same conversation, the defendant promised to put a hard-pine floor in the hall when the plaintiff should request it; and that the plaintiff promised to cement the cellars in the two houses when the defendant should request it.” This agreement also was oral; and when the deed and lease were subsequently executed, it does not appear that anything was said about it. It was not inserted in those instruments or either of them. But, nevertheless, within a few days, on April 15, the defendant requested the plaintiff to do the cementing, and he did it; and soon afterwards when the plaintiff called on the defendant to lay the floor in the hall, the defendant appears to have made no other objection to doing it than that he wished first to know for what use the plaintiff intended to let the hall.

The situation, then, was this: The parties orally agreed to make reciprocal written transfers of property. During the same conversation, but afterwards, they mutually agreed to do, each upon the request of the other, certain things to the property thus to be transferred. These agreements might, naturally and properly enough, have been inserted in the deed and lease; but they were not so inserted. They were not agreements which the law requires to be in writing; and they were not inconsistent with anything contained in either of the two instruments above named. That the parties, in executing these papers and omitting the oral agreements, meant no waiver or abandonment of them, is plainly indicated by the fact that, within a few days after the execution of the documents, one party called on the other to perform his part of it, and the latter complied; and this conclusion is supported