The contract on which the present suit is founded is in the following words: — *Page 488
"Memo. of a contract entered into with G.M. Richmond President of the Richmond Mfg. Co. to print and sell at cost the production of print cloths of my mill in Taunton Mass., with the understanding I am to purchase goods of other makes of like quality, they paying for the same at the market value, sufficient to supply one printing machine about (1200) pieces per week.
"This agreement to continue two years or longer if necessary until I have made the net profit of fifty thousand (50,000) dollars; this contract is to take the place of the one I had previously made to sell them production of my mill for four months at twenty cents per yard. Commencing Jan'y 1st ending May 1st, 1866."
This memorandum was made by Hodges in writing and shown to the defendant. But no agreement in writing was signed by the defendant; and it is contended that it is a contract not to be performed in a year, and therefore void by the statute of frauds, unless in writing.
On the other hand, it is contended that the contract was only to continue until the plaintiff had made $50,000, which might be within the year.
Taking into view the fact that the consideration of the new contract appears to have been the release of a former contract which might have been disadvantageous to the defendant, and that the object (as we infer from the circumstances) was to let the plaintiff make a certain sum of money from the new contract, we cannot but conclude that the money, and not the time, was the principal object, and that therefore it might be performed in a year.
And that the contract should be taken as if it was expressed to continue until the plaintiff had made a net profit of $50,000, even if it was necessary to take two years or longer to do it, and this construction, we think, will best carry out the intention the parties had in making it. The difficulties attending the opposite construction confirm us in this opinion. The motion for a new trial must therefore be granted.
New trial granted. *Page 489