
    
      A. P. Thompson and wife v. A. W. Gordon. James Scott and wife v. Same.
    
    Defendant promised to pay to each of his sisters a certain sum of money at the .\ death of their father — held, that the cause of action did not accrue, nor the statute of limitations, consequently, begin to run, until the death of their father. The delivery of goods to one in consideration of his verbal promise to pay their value to another, is a part execution of the contract, which takes it out of the statute of frauds.
    The statute of frauds, when it enacts that 11 any agreement that is not to be per- ' formed within the space of one year, from the making thereof,” shall be in . writing, means an agreement not to be performed in the space of ayear, and expressly so stipulated. It must appear, within the agreement, that it is not to be performed tijl after the year, to make a note in writing necessary. — Fenton v. Emblei's, 3 Bur. 1278.
    By the delivery of a chattel to one, as a gift for another, the title of the donor is transferred to the donee, when the latter assents to the gift.
    A father intending to benefit his daughters, delivered to his son certain chattels; the son, in consideration thereof, promised to pay his sisters the value of the chattels, at the death of their father — held that the father’s subsequent receipt in full, could not discharge the son’s liability, nor his will change or divest the rights of his daughters.
    
      Jf a promise be made to one, for the benefit of another, the latter may sue on the promise. — Brown v. O'Brien, 1 Rich. 270.
    
      Before O’Neall, J. at Pickens, Spring Term, 1848.
    These were actions of assumpsit. The female plaintiffs were the daughters of Nathaniel Gordon, formerly of Union district, lately of Pickens district.
    Soon after the death of his wife, in March, 1832, he contemplated breaking up house-keeping, and purposed to live with the defendant. Richard Gordon, an older son, proved that he had determined, after making a crop conjointly with his son, he would, in the fall, sell his share of that, with his horses, cattle, hogs, sheep and a small wagon, and divide the proceeds between these two daughters. That, accordingly, in the fall, he was making preparations to carry out this purpose, when his son, the defendant, objected to it, and proposed that he would take the property, half of the crop, (80 barrels of corn,) two horses, the small wagon, the stock of cattle, hogs and sheep, valued at $412, and pay these plaintiffs, (his daughters,) each $200, at the death of his and their father, the said Nathaniel Gordon. The said Nathaniel accepted his proposition, and delivered to the defendant the property, and he (the defendant) promised to pay to each of his sisters, the plaintiffs, at the death of the said Nathaniel, the sum of $200.
    The witness said his father gave it to him in charge to see that this contract was performed. He proved that the defendant had repeatedly admitted it to him, and that he had actually paid to Mrs. Scott a mule colt and cow, of the value of $38, in part of the sum coming to her. Nathaniel Gordon died 19th October, 1843. Three other witnesses, Jesse James, Mary Scott and David James, proved promises, on the part of the defendant, in 1844, the next year after the death of his father, to pay the plaintiffs what he owed them.
    In the course of the defendant’s defence, he gave in evidence a receipt, signed by Nathaniel Gordon, and purporting to be in lull to the date, 10th September, 1842. So, also, he gave in evidence his will, by which he disposed of his negro woman, Betty, and his household furniture; and then stated that the balance of his property had been heretofore disposed of. The will was dated 12th April, 1842.
    There was much other evidence in the case, but the grouuds of appeal don’t make it necessary that it should be more fully stated The actions were commenced 3d September, 1846. The jury were instructed by the Circuit Judge,
    1st. That the statute of limitations could not avail the defendant, as the cause of action did not accrue until the death of Nathaniel Gordon, 19th October, 1843, and there was less than four years from that time to the commencement of this suit
    Burroufrh,’ Godb. 437.
    Dougherty v Snyder, utor, 15 Pick. Barn.and Ád. 447.
    2d. That the agreement being in part executed, by the de-|{ye,y 0p tjjg pr0perty by Nathaniel Gordon, it was not within the statute of frauds, and was therefore not void.
    3d. That the promise being in favor of the plaintiffs, and to enure to their benefit, the actions were properly brought.
    4th. The jury were told, if the promises were made to pay the plaintiffs, the receipt of Nathaniel Gordon would not discharge the defendant’s liability; and so, also, his will could not change or divest their rights.
    The questions of fact were left to the jury. They found for Thompson and Wife $200, and for Scott and wife $162.
    The defendant appealed, and moved for a new trial, on the grounds:
    1st. Because the action was barred by the statute of limitation.
    2d. Because the agreement, on which the action was brought, being verbal, and not to be performed until the death of N. Gordon, which was fifteen years afterwards, was void by the statute of frauds and perjuries.
    3d. Because the action should have been brought in the ' name of the executors of N. Gordon, and not in the name of the plaintiffs.
    4th. Because his Honor, the presiding Judge, charged the jury that the receipt of N. Gordon to the defendant was no bar to the demand of the plaintiffs.
    5th. Because the will of N. Gordon was conclusive as to this pretended arrangement and agreement between the defendant and N. Gordon.
    
      Perry, for the motion.
    
      Young, contra.
   Frost, J.

delivered the opinion of the Court.

The Court is satisfied with the instructions of the Circuit Judge, on the points of law presented by the appeal.

The four years are to be computed from the death of Nathaniel Gordon, when the plaintiffs’s demand was payable, and when they might have commenced their action for its recovery. If one promise to pay A ten pounds on the day his marriage, the cause of action does not accrue until A is married. In an action, brought, by the widow, in the State Pennsylvania, against the executors of her husband, on obligation of the husband to his wife, made in the Slate 0f Louisiana, to pay her a sum of money, it was held the ac-did 110t accrue to the wife till the death of her husband; and the statutory period was to be computed from that time.

The statute of frauds, when it enacts that “ any agreement that is not to be performed within the space of one year, from the making thereof,” shall be in writing, means an agreement not to be performed in the space of a year, and ex-, pressly so stipulated. A contingency is not within the stat-' ute — it must appear, within the agreement, that it is not to be performed till after the year, to make a note in writing necessary. A promise, in consideration of one guinea paid, to pay the plaintiff ten, on the day of his marriage, is not within the statute. Nor is a promise that, in consideration the plaintiff would forbear to sue, the executors of the debt or should pay the debt. The promise of the defendant to pay, on the death of Nathaniel Gordon, is within the princi-pie of these cases.

Fenton v. Em-bler®> ^ Bur-petervComp-Skin. 353. Wells v. Horton> | Bins-

l Rich. 270.

McKane v Bonner, i Bail. 113.

In Brown v. O’Brien, it was decided that if a promise be made to one for the benefit of another, the latter may sue on the promise.

A gift, executed by delivery, cannot be revoked either in part or entirely. By the delivery of a chattel to one, as a gift for another, the title of the donor is transferred to the do-nee, when the latter assents to the gift!; If the defendant had promised to deliver the chattels to the plaintiffs, at their father’s death, that would have vested the title in them. His promise to pay them the value, must have the same effect.— The jury were then properly instructed, that if the defendant, at the time the goods were delivered to him, promised to pay the value of them to the plaintiffs, the subsequent receipt and will of the donor, could not discharge the defendant’s liability. For it is a well settled rule that evidence of the acts and declarations of a donor, subsequent to, and inconsistent with a gift, shall not be admitted to invalidate it.

The motion is refused.

The whole Court concurred.

Motion refused.  