60 Md. 348 | Md. | 1883
delivered the opinion of the Court.
This is an appeal from the judgment of the Circuit Court for Cecil County, in an action brought by the appellant, the plaintiff below, for an alleged breach of a contract. The declaration contains three counts. The first sets out the special contract: the others being the common counts for “ work and labor done,” and “an account stated.”
It appears from the record that the appellee, a resident of the City of Philadelphia, having entered into negotiations for the purchase of a certain mill, situate in Cecil County, Maryland, and owned by a Mr. Patton, found the plaintiff in charge of said mill, and entered into a conversation with him concerning the property. At the trial of
“ I bought the mill of Mr. Patton. On Thursday I will send two of my employes to see you, and wish you would, together with them, see what is to be done to put the mill in good shape. I propose putting you in charge of the mill, and want to get at work as soon as possible.”
The remaining portion of the letter gives directions relative to the management of the property, and the payment of the operatives to he employed.
The plaintiff further testified that on the day and year the said letter was received, he entered the service of the defendant, and continued therein until he was discharged on the twentieth day of April, 1880, at which time he was ready and willing to perform the services agreed upon until the end of the year.
The defendant testified that he had visited the mill on the eighth day of March, 1880, and found the plaintiff there, but denied that he had hired the plaintiff on that day, or on any other day, at a salary of $1,000 or any other •sum. He further stated that he had no recollection of having written any letters to the plaintiff, but admitted the hand-writing to be his.
The first prayer of the plaintiff asserts his right to re-cover on the special contract, if the jury believe he was
The plaintiff’s second prayer asserts that the measure of damages is the salary for the whole year, after deducting amount of payments on account of said salary.
The plaintiff’s third prayer asks the Court to instruct the jury that there is no evidence in this cause that the dismissal of the plaintiff, if they find he was dismissed by the defendant from his service, was for sufficient cause.
These prayers of the plaintiff were rejected by the Coun,; and, in conformity with the legal propositions enunciated in the prayers presented by the defendant, and granted by the Court, the jury were instructed,
.First. That there was no legally sufficient evidence to entitle the plaintiff to recover on the first count in his declaration;
Secondly. That there was no evidence legally sufficient to entitle him to recover on the third count;
And thirdly. That if the jury should believe, from the evidence, that the defendant employed the plaintiff, and that the plaintiff entered his service on the tenth day of March, 1880, and continued therein until discharged, he was entitled to recover on the quantum m,ermt.
To the rejection of his prayers and the granting of the defendant’s prayers, the plaintiff excepted, and thus brings the questions involved in controversy into this Court for final adjudication.
The two first instructions, asked for by the defendant and granted by the Court, being in the nature of a demurrer to the evidence, carry with them a concession of the truth of such evidence, and an absolute negation of all
Conceding, however, that there was a perfect contract entered into by the parties to this cause on the eighth day of March, 1880, the remedy is not barred by the Statute of Frauds, and can therefore be enforced. The performance, within the time limited by the Statute, was dependent upon a contingency. The defendant said, “ If I buy the mill.” This contingency might have happened within an hour after the utterance of these words. In that event, the contract being already operative, the services could have been performed within a year. Judicial construction in England and in this State has placed this question beyond the limits of controversy. In the case of Fenton vs. Emblers, 3 Burrows, 1281, it is said by Denison, J.:
“ The Statute of Frauds plainly means an agreement not to be performed within the space of a year, and expressly and specifically so agreed. A contingency is not within it; nor any case that depends upon contingency.”
This construction of the Statute has received an unqualified recognition in this State. In the case of Ellicott vs. Peterson’s Ex’rs, 4 Md., 488, it is said:
“ These principles have been recognized by innumerable decisions both in England and this country. And in pursuance of the principles which they sustain, especially*354 that of the case of Peter vs. Compton, Skinner, 353, it has heen held both in England and in these States, the Statute will not apply where the contract can, by any possibility, he fulfilled or completed in the space of a year, although the parties may have intended its operations-should extend through a much longer period.”
The learned Chief' Judge who delivered the opinion of' the Court in' that case supported this construction of the Statute by the citation of a number of authorities, both English and American.
This is therefore no longer a mooted question in Maryland. When there is a possibility that the services may he performed within a year, the remedy for a breach of the contract is not barred by the Statute. This record contains. no evidence which shows that the mill was not purchased on the eighth day of March, 1880 ; and there is a strong probability that this contingency did occur on that day, as the letter of the defendant informing the plaintiff of the purchase is dated in Philadelphia, on the day after. If the parties entered into the contract on the eighth day of March, and the purchase was effected on that day, it was an agreement clearly not within the Statute. The absence of proof as to the precise time of" the purchase is fatal to the assumption which seems to have formed the basis of the instructions granted by the Court below.
Erom what has heen said, it follows that there was error in the rejection of the plaintiff’s prayers, and in granting the first and second prayers of the defendant.
The judgment must therefore he reversed and a new trial awarded.
Judgment reversed, and new trial awarded.