95 Kan. 131 | Kan. | 1915
The opinion of the court was delivered by
was an action begun by G. M. Jamison to recover damages from George Christman and Phillip Christman for their failure to supply him with water sufficient for his needs in connection with the lease of certain property located in Shawnee county and in accordance with the provisions of a guaranty to furnish water sufficient for his purposes. On September 23, 1910, George Christman leased the property to plaintiff for a term of three years and provided in the lease for the payment of rent at fixed times, but no guaranty as to the supply of water was contained in the
The decision was based mainly on the ground that the oral contract about which the testimony was ad
It is first contended that the defense of the statute of frauds is not available unless it is specially pleaded and the answer of the defendants was a general denial. It is the rule in some of the states that a party can not avail himself of this defense unless it is specially pleaded. A different rule, however, obtains in this state, and has from the beginning. In the early case of Wiswell v. Tefft et al., 5 Kan. 263, it was decided that:
“The statute of frauds may be relied on as a defense as well under a general denial as under any other answer.” (Syl. ¶ 3.)
(See, also, Baldwin v. Baldwin, 73 Kan. 39, 84 Pac. 568, 4 L. R. A., n. s., 957; Thisler v. Mackey, 5 Kan. App. 217, 47 Pac. 175.)
And in many other jurisdictions a denial of the contract is sufficient to let in the defense of the statute of frauds. (Feeney v. Howard, 79 Cal. 525, 21 Pac. 984, 4 L. R. A. 826, 12 Am. St. Rep. 162; Jordan v. Furnace Co., 126 N. Car. 143, 35 S. E. 247, 78 Am. St. Rep. 644, and note; 20 Cyc. 314.)
As to the invalidity of the verbal agreement relied on there can be little doubt. (Wolf v. Dozer, 22 Kan. 436.) Plaintiff insists that the agreement, fairly and reasonably interpreted, could have been performed within one year and therefore was not within the statute. It has been held that a parol contract which is capable of being fully performed within a year and there is no stipulation in it to the contrary is not within the statute although it is not likely to be performed within a year and even if it was not in fact performed within that time. (Larimer v. Kelley, 10 Kan. 298; Sutphen v. Sutphen, 30 Kan. 510, 2 Pac. 100; A. T. & S. F. Rld. Co. v. English, 38 Kan. 110, 16 Pac. 82; Aiken v. Nogle, 47 Kan. 96, 27 Pac. 825; Burnell v.
“It was an agreement not to be performed within the space of one year from the making, and comes within*135 the first section of our statute of frauds. The mere fact that its performance was possible within a year by the adoption of such means as would secure a probably continuous flow of water, would not-prevent the statute from applying. It was a continuing obligation which could not be fully satisfied or completely performed until the end of the term. It bound her not only to furnish the supply at the beginning of the term, but to keep the supply sufficient until the end of the term." (Cooney v. Murray, 45 Ill. App. 463, 465.)
Some of the many authorities holding an oral agreement to be within the statute where the obligation under which the action is brought extends beyond the period of one year are Day v. New York Central Rail Road Company, 31 Barb. (N. Y.) 548; Wilson v. Ray, 13 Ind. 1; Lawrence v. Woods, 17 N. Y. Super. Ct. 354; Swift v. Swift, 46 Cal. 266; Lapham v. Whipple, 49 Mass. 59, 41 Am. Dec. 487; Frary v. Sterling, 99 Mass. 461; 20 Cyc. 206; Browne on the Statute of Frauds, 5th ed., § 283; Smith on the Law of Fraud, § 347.
By the express terms of the agreement in question a continuing obligation is imposed on the defendants which remained upon them for more than one year and was incapable of performance within that time. It is a serious question whether or not testimony as to the statements and stipulations of the parties relating to the supply of water, made before the execution of the lease and which were omitted from it, were admissible. If it be assumed, however, to have been a distinct and independent agreement which did not conflict with those written in the lease it must still be held to be within the statute of frauds and therefore void.
We find nothing in the case which excepts it from the operation of this statute or would make it enforceable.
The judgment of the district court is affirmed.