¶1 (dissenting): I cannot agree with the majority opinion. Contracts of the sort here in question are not, and should not be, favored by the courts. They offer an opportunity for unrighteous gain, thus arousing avarice, the tendency of which is to promote perjury. Such contracts should not be enforced unless they are definite and certain in their terms, and are supported by clear and convincing testimony. In my opinion, the record here is faulty in each of these particulars.
¶2 I think the contract void for want of certainty, because it fixes no time during which the promisor is to continue in the care of the grave of the donor. The majority seem to assume that he is to care for it in perpetuity. But this construction renders the contract void, because it makes a contract incapable of performance by the promisor. It cannot be a contract to continue the care for a reasonable time, because that doctrine has no application to contracts of this sort.
¶3 The rule of law which allows a reasonable time for the performance of a contract, where no time is fixed in the contract itself, has in it something of equitable consideration, and is applied to prevent injustice, and then only where it is apparent that its application is not contrary to the evident intent of the contracting parties.
¶4 It is, moreover, only applied to contracts which in themselves are capable of a completed performance, and applies then to the time for performance. It is not applied to instances where its application is necessary to make a completed contract. To so apply it, is to make a new contract for the parties. In this instance, if the opinion of the majority be correct, the promisor has earned his stipend if he has continued in the care of his donor’s grave for a single instant of time after her burial.
¶5*455 On the second question, since the majority have not discussed the evidence, I do not feel that I need do so. It is sufficient to say that, in my opinion, the evidence leaves the question in doubt whether the contract contended for was entered into, much less that it was proven by clear and convincing evidence.
¶6 I am aware that the majority stress the fact that this was a small estate, and that the promisor receives no more than is a just compensation for his services.
¶7 But I think this beside the question. The majority are announcing a general rule, applicable alike to all instances of the same kind; instances where there is a large amount of property, as well as those where the property is of insignificant value. Nor do I think the principle I contend for denies to the promisor compensation for the services he has actually performed. For these he can, and should, receive a compensation measured by the value of the services. He should not receive the entire estate, regardless of the question of value.
¶8 The judgment should be reversed.