Bastin Telephone Co. v. Richmond Telephone Co.

117 Ky. 122 | Ky. Ct. App. | 1903

Opinion op the coubt by

JUDGE NUNN

Affirming.

Appellant sued appellees, the Richmond and Cumberland Telephone Company for $2,000 damages, for the violation of a parol contract to the effect that each party should build a telephone line, one from Richmond, Ky., the other from Lancaster, Ky., to a point half way between the two towns, and there connect, and that each should then have the use and benefit of the other’s lines and connection free tof charge for a period of twenty years. The poles were to be erected by 'both parties, and connection made, within a year from the date of the contract. They were actually erected by appellant within the time stipulated in the contract, and appellee Richmond Telephone Company, had partly erected its part of the line, when, as alleged, the appellee, Cumberland Telephone'Company, obtained a majority of the stock in the Richmond company, and took the control and complete management thereof, stopped erection of this line and refused to carry out the contract, and had abandoned same. The lower court sustained a demurrer to the petition, evidently on the ground that an action on such a contract was inhibited by the statute.

The appellant contends that because the contract stipulated that the poles were to be erected on the line between the two towns, and the connection made, within the twelve months, and that it was within the power of the parties to the contract to complete same within the time named, therefore the contract was valid and binding. So much of section 470, Ky. Stat., as is applicable to the question presented, reads as follows: “No action shall be brought to charge any person . . . upon any agreement which is not to- lie performed within one year from the making thereof, unlessi the promise, contract, agreement, representation, assurance, or ratification, or some memorandum or note thereof, be in writing, and signed by the party to be charged therewith. . . The statute refers to such contracts as can not be performed by either party within a year, and although it may contain various stipulations, some of which may be performed within a year, yet if any part of it can not be so performed it is clearly within the statute.

In the case of Halloway v. Hampton, 4 B. Mon., 415, the plaintiff had agreed to sell and deliver to defendant his crop of hemp then on hand, as soon as prepared for manufacture, to be delivered at a certain place and at a certain price, and in like manner to deliver his crop of the two succeeding years. The suit was brought for the refusal of the defendant to receive and pay for, at the contract price, the next succeeding crop after the date of the contract. Defendant contended that the contract was not to be performed within a year, and, being verbal, was within the statute. The court, in discussing that case, said: “The question has presented itself whether, as the crop of the first year succeeding the date of the agreement might have been delivered within a year from that time, this action might not be maintained upon the stipulations relating to that crop; but upon consideration of the subject we are satisfied that the agreement, though it consists of various mutual stipulations which may be performed or violated at different periods, must, in view of the statute, be regarded as one entire contract, as indeed it is in fact, and that, although some of its stipulations might be performed within the year, yet as the agreement — that is, the entire agreement, for there is but one — is obviously not to be performed within the year, and can not be, no action can be maintained for the breach of those stipulations which might and should have been performed within that time. The statute embraces all agreements which are to be fully performed within the year.”

The agreement in that case to deliver the second and third crops of hemp was as much a part of the contract as the stipulation to deliver the first. So, here, the agreement for the use of the two> telephone lines, the terms upon which each was to use the other’s lines, and the length of time for which such use was to exist, constitute just as much a part and as important an element in the contract as the provision for the construction of the lines. The com'pletion of the lines and connection of the wires would not and could not complete this contract. ■ It would be but the beginning of the expected beneficial part of 'same. An executed contract is defined as “one in which the object of the contract is performed.” The violation of this verbal contract by appellees, and the statutory prohibition in the way of the enforcement of it will work injury to appellant, but it results from the neglect of appellant in not having this contract, or some memorandum thereof, reduced to writing and signed by the parties.

For these reasons, the judgment is affirmed.