79 W. Va. 526 | W. Va. | 1917
In the year 1907 the defendant Alkire Orchard Company was formed. The plaintiff.was active in.the organization of this company. He was interested in it as a stockholder, and
Defendant contends that under the resolution adopted by the board of directors in December, 1914, plaintiff’s employment with it ceased at that time. Plaintiff contends, however, that under the contract, as shown by the minutes passed by the board of directors in March, 1913, he was employed for one year from the first day of March, 1913, to the first day of March, 1914, and that the resolution passed on the 20th day of January, 1914, had the effect of employing him for another year from the expiration .of his first employment. Plaintiff admits that his only contract of employment with the defendant company for the year beginning March, 1913, is that embraced in the minute above quoted, and that he went to work under the arrangement therein stated without any other contract or agreement with the defendant company. The defendant refused to pay the plaintiff any salary for the months of January" and February, 1915, which he claims was covered by his contract of employment. He brought his suit to recover salary for these two months at the rate of one hundred dollars per month. Upon a trial of the case in the
Gan tbe plaintiff claim a contract for one year under tbe arrangement set out in tbe minutes of tbe board of directors above referred to ? It will be observed that tbe proposal made by tbe defendant company to tbe plaintiff under which be accepted employment in March, 1913, does not provide for the continuance of such employment for any particular time, but simply provides for his employment as manager at a salary of one hundred dollars per month. He does not contend that at this time there was any understanding other than that expressed in the minutes, of the board of directors above set out. From this it is quite clear that his employment was simply a monthly employment, and could be terminated at the end of any month, either by himself, or by the defendant. Elliott on Contracts, sec. 176; Tubbs v. Cummings Co., 200 Mass. 555; Nichols v. Coolahan, 10 Metcalf, 449; Moss v. Decatur Land Improvement & Furnace Co., 93 Ala. 269; Cronemillar v. Duluth-Superior Milling Co., 134 Wis. 248.
He says, however, that in January, 1914, when the resolution above.quoted was passed, retaining him as manager at the same salary as last year, there was an agreement with the board of directors that the employment under this resolution would commence on the first of March, 1914, and continue until the first of March, 1915. On the demurrer to the evidence we must take this statement as true, notwithstanding it is controverted.' The defendant, however, says that even if he did have such verbal contract with the directors of the company the same cannot be enforced because of that provision of the statute of frauds which requires that any contract not to be performed within a year shall be in writing. Code, ch. 98. The plaintiff’s proof in regard to his verbal contract of employment is that it was made on the 20th day of January with the directors of the company at a meeting held on that day; that it provided for his employment as general manager of the company at a salary of one hundred
In Lee v. Hill, 87 Va. 497, (12 S. E. 1052) a parol contract for personal services made in August for the term of one year, to begin on the first day of the ensuing October, is held to be a contract not capable of being fully performed within a year, and hence not enforceable because not in writing.
In the case of Parkersburg Mill Co. v. Ohio River Railroad Co., 50 W. Va. 94, a contract providing for the carriage by the defendant company of certain freights for one year at a certain rate was in question. It appeared that the contract was made on the 10th of December, 1899, and provided for the carriage of all freights of the plaintiffs of a certain class for the year beginning January 1, 1900, at a certain rate. The defendant refused to perform the contract and charged a higher rate than that agreed upon. Upon a suit brought by the defendant to recover the excess charged the Court held that the contract, having been made on the 10th of December, and the performance thereof not to be completed until the 31st of December of the following year, was not such a contract as could be performed within one year. The’ law is thus stated in the syllabus: “A verbal agreement of which there is no note or memorandum in writing signed by the agent or party to be charged thereby and which is not to be fully performed within one year from and including the date of its making, comes within the inhibitions of the statute of frauds and cannot be enforced by actions at law.” See also Kimmins v. Oldham, 27 W. Va. 258; Miller v. Wisener, 45 W. Va. 59; Reckley v. Zenn, 74 W. Va. 44; McClanahan v. Coal & Mining Co., 74 W. Va., 543; 20 Cyc. 206; 29 Am. & Eng. Enc. of Law, 943.
Plaintiff contends that the statute of frauds relied upon by the defendant has no application to his contract, because of the minute made by the board of directors on the 20th of January showing his employment. Even if a minute of the board of directors of a corporation is such a memorandum in writing as will relieve against the statute of frauds, (and upon this question we express no opinion) still the minute relied upon by the plaintiff for the purpose cannot have that effect. It is not a memorandum of any such contract as he sets up, but is a memorandum of a contract similar to the contract had with plaintiff in the previous year which, as we have before seen, was a contract of employment by the month.
Plaintiff further contends that even though his employment had been terminated by the board of directors, and he was not employed under a contract during the months of January and February, 1915, he should be allowed to recover for services which he actually performed for the company during those months. He says that he did' some work for the company during those months in the way of moving some dead trees and straightening up around the orchard of the defendant. The extent of this work performed by him does not appear, nor is there any evidence whatever as to its value, nor can it be said that he did this work with the tacit approval of the board of directors of the defendant company, or under such circumstances as would imply a promise to pay for it, in the face of the resolution adopted by that board in December, 1914. Before the plaintiff can recover on the
The judgment of the Circuit Court of Mineral County is clearly right and the same is affirmed.
Affirmed.