125 Neb. 26 | Neb. | 1933
Plaintiff sued for damages for alleged breach of an oral contract. At the end of plaintiff’s testimony he rested his case and defendant moved for a directed verdict on the ground that the oral promise was within the statute of frauds. The court sustained the motion and entered judgment dismissing the cause. Plaintiff appealed.
So much of section 36-202, Comp. St. 1929, as is applicable, says: “In the following cases every agreement shall be void, unless such agreement, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged therewith: First. Every agreement that, by its terms, is not to be performed within one year from the making thereof; Second. Every special promise to answer for the debt, default or misdoings of another person.”
Appellee argues that, as the note and the indorsement thereof form a written instrument indicating its freedom
The facts are fixed as we have stated them. The appellee admitted them when he moved for judgment. The only question of law is whether the admitted oral agreement is void because it comes within the definition of the statute as one “not to be performed within one year from the making thereof.” The statute is general and does not specify any particular subject-matter of oral agreements.
An oral contract for leasing lands, depending upon a contingency which may occur within a year, though in fact it does not happen until later, is not void under the statute of frauds. McCormick v. Drummett, 9 Neb. 384. An oral contract by which a landlord agrees to give a tenant the use of the land and to pay the tenant the actual cost of a building and baking oven erected by the tenant, at any time the landlord desired possession, held not a defense to a forcible entry and detainer action, but not
In Griffin v. Bankers Realty Investment Co., 105 Neb. 419 (quoting Hanktwitz v. Barrett, 143 Wis. 639) it was said: “The sale and delivery of stock and payment of the price, under a contract whereby the seller agreed to repurchase at the buyer’s option, constituted an entire transaction which was sufficiently performed to take it out of the statute of frauds, relating to contracts for sale of goods, though the agreement to repurchase was oral.” We applied the same rule to sales of stock in Stratbucker v. Bankers Realty Investment Co., 107 Neb. 194, and in Grotte v. Rachman, 114 Neb. 284.
We conclude that the district court erred in sustaining the motion and in entering judgment for defendant. The judgment is reversed and the cause remanded.
Reversed.