38 Kan. 110 | Kan. | 1887
Opinion by
The plaintiff in error complains that the petition does not state facts sufficient to constitute .a cause of action. It alleges that the Wichita & Southwestern Company is a corporation, but omits the word “railroad,” although subsequently the petition alludes to it as the said Wichita & Southwestern Railroad Company. The omission was evidently not brought to the notice of the trial court; probably not noticed by the attorney for the defendant during the trial, as, in the first instruction he asked the court to give, the fact of the organization of both the defendant and the Wichita & Southwestern Railroad Company. If such omission ever rendered the petition materially defective, such defect has been waived.
It is objected further, that as the promise to give such pass was not in writing and not to be performed within one year, it was void under § 6, chapter 43, Compiled Laws of 1879, which provides:
“No action shall be brought whereby to charge a party . . . upon any contract for the sale of lands, tenements, hereditaments, or any interest in or concerning them, or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.”
This contract was also performed within one year upon the part of plaintiff, and the defendant cannot claim protection under the statute of frauds; its protection extends to executory contracts, and does not apply to contracts that have been executed by one party. Mr. Wood, in his treatise on the Statute of Frauds, in §279, says:
“In England and most of the states of this country it is held that the statute only applies to contracts which are not to be performed by either side within a year, and therefore where a contract has been completely performed on one side within the year the case will not come within the statute.” (McClellan v. Sanford, 26 Wis. 595; Curtis v. Sage, 35 Ill. 22; Berry v. Doremus, 30 N. J. L. 403; Haugh v. Blythe, Ex’r, 20 Ind. 24.)
Our statute is unlike the British statute, w'hich declares:
“No action shall be brought whereby to charge any person upon any contract or sale of lands, tenements, hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some note or memorandum thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.”
The omission in our statute of the provision concerning the sale of lands was no accident. It has its signification. It in effect exempts the sale of lands and retains only the contract for the sale of lands, not in writing, within the purview of the statute. In this respect our law is similar to the laws of most of the other states.
The case of Becker v. Mason, 30 Kas. 697, does not support the theory of the defendant, nor is it in conflict with the views herein expressed. That action was brought to enforce a parol contract for the sale of land. In this action the sale had been made and the deed delivered. Mr. Justice Valentine, after citing § 6, says:
“ It will be noticed that the statute above quoted includes all contracts ‘for the sale of lands;’ all contracts for ‘any interest therein,’ and all conti’acts ‘concerning’ lands, and it is the contract upon which the action is to be brought ‘ to charge a party,’ and not something else; and it is the contract, or some note or memorandum thereof, upon which ‘the party [is] to be charged,’ and not something else. It is not the sale, or the purchase, or the transfer, or a release, or some other special thing affecting or ‘concerning’ the real estate upon which the action is to be brought; nor is it any one of these special things upon which ‘the party [is] to be charged.’”
The defendant claims that certain instructions given by the court are erroneous, among otheis the one numbered five:
“5. If the said T. J. Peter, for and on behalf of the defendant, and at the time of making said contract, did not have authority to make the same, and the defendant, after said Peter ceased to act for it, issued to the plaintiff one or more .annual passes on account of said contract, the defendant would be bound by the original contract made by Peter, as such would be a ratification of the original contract by the defendant.”
By the Court: It is so ordered.