21 Ind. App. 495 | Ind. Ct. App. | 1899
It is assigned as error that the Clark Circuit Court, from which the venue was changed to the court below, erred in overruling the demurrer of the appellant to the appellee’s complaint, for want of sufficient facts. It was, in substance, shown by the complaint that on the 1st day of September, 1895, the appellant, being in regular session and there being before the board for consideration the appointment of a janitor for the court-house of Clark county for the year beginning September 1, 1895, employed and engaged the appellee as such janitor for said ensuing-year, under and by virtue of an order by said board upon that date passed and spread upon the records of “said court,” a copy of which ordér is exhibited. It is further alleged that the appellee, pursuant to the terms of said order, accepted said employment, and entered upon the duties of janitor of the courthouse for one year beginning September 1, 1895, for which services he was to receive the sum of $480; that he performed the said duties of janitor from the 1st of September, 1895* until the 15th of June, 1896, at which time he was discharged without cause; that the appellant had ever since refused, and still refused, to permit him to perform his said duties as janitor of said court-house; that he was willing, and had ever since been willing, to perform his part of , said order of employment, and to comply with all the provisions thereof; and that because of the appellant’s failure and refusal to permit him to do so he had been damaged in the sum of $500, for which he demanded judgment.
The exhibit filed with the complaint was as follows: “In the matter of appointing a janitor for
There is inconsistency in this complaint. While it is alleged that the board of commissioners, on the 1st day of September, 1895, under and by virtue of an order that day passed, employed the appellee for the year beginning on the same day, and that he accepted said employment, and entered upon the duties thereof, for one year beginning on the same day, yet the order itself, thus alleged to have been made September 1, 1895, states that the board was advised that the then employed janitor’s time would expire before the next regular session of the board, and that the board proceeded to appoint the appellee for one year from September 1, 1895. The order is dated June 14, 1895. As the pleading must be taken most strongly against the pleader, and as the exhibit, so far as it differs from the averments of the pleading, controls, we* must regard the complaint as declaring upon a contract of employment to render service for a year to commence in the future. Being an “agreement- that is not to be performed within one year from the making thereof,” no action could be brought thereon unless the agreement, or some memorandum or note thereof, be in writing, “and signed by the party to be charged, therewith, or by some person thereunto by him lawfully authorized. Section 6629, Burns’ R. S. 1894, (4904, Horner’s R. S. 1897).
An oral agreement for service for a term extending
Where a complaint is based upon a written contract, the plaintiff must recover upon the written contract or not at all. Carter v. Gordon, 121 Ind. 383.
Where a party to a contract voidable under the statute of frauds has rendered services pursuant to the contract, he may recover the value of the services under a quantum meruit. Wolke v. Fleming, 103 Ind. 105.
The doctrine of part performance has no application in the case of a contract that cannot be performed by either party within a year. Wolke v. Fleming, supra.
The signature is required for the purpose of attesting the writing as that which contains the terms of the contract. Jones v. Victoria, etc., Co., L. R. 2 Q. B. D, 314. In that case it was held that an entry in the record of the minutes of the proceedings of a corporation, signed by a person having authority thereto, may constitute a memorandum of a contract required by the statute of frauds sufficient to charge the corporation. In Chase v. City of Lowell, 7 Gray (Mass.) 33, it was held that the vote of an authorized committee of a city electing their clerk as city engineer for a year from a subsequent date, duly recorded and signed by him as their clerk, was a sufficient note or memorandum to take the appointment out of the statute of frauds. In Tufts v. Plymouth, etc., Co., 14 Allen, 407, the vote of a corporation, signed by its Clerk, was held to constitute a contract in writing, within the statute of frauds. In Argus Co. v. Mayor,
In Caldwell v. School City of Huntington, 132 Ind. 92, the complaint alleged that the school city on the 24th
At the bottom- of the order set out as an exhibit, opposite the word “attest,” is the name “Peter Dillon,” and the annexed initials “P. B.” There is no averment in the complaint in relation to any signature or concerning the person whose name is thus added. The exhibit is set out as an order alleged to have been passed by the board, and spread upon its records. It may be considered that the records of the board of commissioners show what is thus exhibited. The question is whether or not it appears as a fact that the memorandum was signed by the appellant, or by some person lawfully authorized by the appellant to sign it. In Goddard v. Stockman, Treas., 74 Ind. 400, 404, speaking of the board of county commissioners, it was said: “No statute has been called to our attention or come under our observation, which requires that the proceedings of the board be signed by the members of the board, though it is doubtless'the common usage, and