Edwards v. Farve

71 So. 12 | Miss. | 1916

Smith, C. J.,

delivered the opinion of the court.

Appellee instituted this suit in the court below to recover of appellants damages alleged to have been sustained by him because of the breach by appellants of a parol contract, by which, according to his evidence, he agreed to deliver to appellants ’ mill all of the logs which conld be obtained from' the timber on certain described land, appellants agreeing to pay him therefor thirty-five cents per log, two hundred logs, neither more nor less, to be delivered each day, excluding Sundays, till the entire number thereof which could be obtained from the land had been delivered. One of appellants’ defenses is that the contract was void under the statute of frauds, because it was “not to be performed within the space of one year from the making thereeof.” In support thereof, evidence was introduced by them to the effect that there were between ninety thousand and one hundred thousand logs on the land. The evidence for appellee was to the effect that the number of logs on- the land was between forty thousand and fifty thousand. One of the instructions requested by appellants and .refused by the court was as follows:

“The court instructs the jury for the defendant that a suit cannot be maintained on any oral contract which is not to be performed within the space of one year from the making thereof, and that therefore if the jury believed from the evidence that the number of logs to be handled could not be handled under the contract at the rate of two hundred per day within one year from the beginning of said work they should find for the defendant. ’ ’'

If the number of logs to be delivered under this contract amounted to ninety thousand, the contract could not have been performed within one year from the making thereof, for, since appellee could not be required to deliver nor appellants to receive more than two hundred logs per day, it would have required four hundred and fifty days to deliver them.

But it is said by counsel for appellee “that this contract, being personal, could and would terminate with the death of either individual,” which death might have occurred within the year, and therefore the contract is not within the statute. Conceding for the sake of the argument that the death of either party to this contract would have terminated it, it would certainly not thereby have been fully performed, and the rule is that: ,

“If the death of the promisor within the year would merely prevent full performance of the agreement, it is within the statute (Mallett v. Lewis, 61 Miss. 105); but if his death would leave the agreement completely performed and its purpose fully carried out, it is not.” Jackson v. Railroad Company, 76 Miss. 607, 24 So. 874; Doyle v. Dixon, 97 Mass. 208, 93 Am. Dec. 80.

If the number of logs to be delivered amounted to ninety thousand, the contract sued on is within the statute of frauds and the instruction hereinbefore set out should have been given, for:

“The clause of the statute in regard to agreements 'not to be performed within the space of one year from the making thereof’ means to include any agreement which, by a fair and reasonable interpretation of the terms used by the parties, and in view of all the circumstances existing at the time, does not admit of its performance, according to its language and intention, within a year from the time of its making. ” 2 Elliott on Contracts., secs. 1277 and 1287.

: Reversed and remanded.