153 Mo. App. 120 | Mo. Ct. App. | 1910
This is a suit on an account, which is conceded to be correct; but defendant’s answer contained a counterclaim for damages alleged to have accrued to it through the breach of a contract-to deliver other goods or material. The Statute of Frauds was interposed against the right of recovery on the contract declared upon in the counterclaim, and at the conclusion of all the evidence, the court peremptorily directed a verdict against defendant, both on the account and the counterclaim. From this ruling defendant prosecutes the appeal.
Defendant is an incorporated company engaged in the rendering business and as such is a purchaser of
It is argued for defendant the court erred in directing a verdict against it on this uncontroverted proof, for the reason, though the contract was verbal and entered into November 21, 1907, it was not to.take effect until the following day, November 22, and a computa
Ordinarily, to remove a contract, such as this one, from the operation of the clause of the statute referred to, it must be one that may be fully performed within one year. The performance required by the statute is full performance. The contract in such circumstances must be capable of entire and complete'execution within the year. [Sharp v. Rhiel, 55 Mo. 97; Browne on Statute of Frauds (5 Ed.), sec. 285.] This being true, the term or time of the contract is to be computed from the day it is ‘made and not from a future date which may be stipulated therein as the time performance shall commence. As it is conceded the verbal contract was entered into November 21st, stipulating performance to commence November 22, 1907, and to continue for the period of a. year until November 21, 1908, the court properly declared the laAv on this feature of the case to the effect no action could be maintained thereon. Such a contract is for a year and one day beyond question. This is true notwithstanding the stipulation that performance should commence on November 22d, for the statute operates on the contract from the time it was entered into and not from a future date, though such may be agreed upon. [Biest v. Versteeg Shoe Co., 97 Mo. App. 137, 149, 70 S. W. 1081; Sharp v. Rhiel, 55 Mo. 97.] Indeed the statute in plain terms, when invoked, inhib
In construing the clause of the Statute of Frauds now under consideration, the courts have drawn nice distinctions with respect to contracts which fall within and without its influence. Some of the cases would seem to entirely overlook the highly remedial purpose of the statute. There is abundant authority to the effect that some parol contracts, although expressly allowing more than a year for performance, are without the statute if the agreement may be substantially and reasonbly performed according to the understanding and intention of the parties within a year. [Browne on Statute of Frauds (5 Ed.), sec. 278.] It is argued the contract before us should be deemed to be such, for the reason that though it stipulated more than a year for performance, it was possible for plaintiff to fully perform his undertaking within less than a year from the date it was made. The undertaking of plaintiff was to deliver to defendant, at certain prices, all of the fat and refuse which he might accumulate or have until November 21, 1908. It is said as plaintiff might not accumulate or have refuse matter during the latter part of this period', the contract was susceptible of full performance within less than a year and for this reason should be declared one falling without the influence of the statute. The contract, of course, imposed reciprocal obligations and while it was for plaintiff to deliver the material to defendant if he accumulated or had it during the entire period, it required defendant to accept such deliveries at the prices and on the terms named to and including the last day of the time stipulated. The parties are free to contract, and the rule is, that though there be a possibility of full performance in less than a year, nevertheless, if it requires certain conduct with respect to the subject-matter for a period beyond a year, however short, the statute finds application. Where the manifest intent of the parties, as gathered from the
This court, in Biest v. Versteeg Shoe Co., 97 Mo. App. 137, 70 S. W. 1081, declared a contract of employment of more than one year to be within the statute notwithstanding one or both of the parties had the express option of terminating the same by notice to the other before the year elapsed and thus operating its full performance. [See, also, to the same effect Meyer v. Roberts, 46 Ark. 80; Wilson v. Ray, 13 Ind. 1. And touching the same principle, see McKeaney v. Black, 117 Cal. 587.] According to principle and by the weight of both authority and reason, a contract expressly providing for performance to a definite time beyond a year from, the making thereof is within the statute, notwithstanding it may be defeated by the happening of a contingency, for in such case, the parties having expressed that the performance shall be postponed beyond a year, it is clear that-no contingency happening within a year can amount
It is next argued that as the contract is personal in so far as plaintiff is concerned and does not require performance by his representatives after death, it is without the statute for the reason it might have been fully performed by the death of the plaintiff within the year. When a contract is purely personal, so that it imposes no obligation upon the representatives, and is furthermore indefinite in point of time, the authorities declare it is not within the statute, for the reason the death of the parties, which may occur within the year, operates its full performance. [See Browne on the Statute of Frauds (5 Ed.), sec. 277; Foster v. McO’Blenis, 18 Mo. 88.] But the rule of decision referred to is without influence in those cases where the contract expressly creates an obligation for a definite time of more than one year, such as this one. In such circumstances, it is immaterial that the death of the party which may occur within the year operates performance of the contract in view of its personal nature entailing no obligation upon the representatives, for it must be understood that all persons contemplate a human life may terminate at any time and therefore, as the parties, with this in mind, have expressly postponed the full performance of the contract to a time beyond a year from its date, the statute obtains, if invoked at the trial. [See Browne on the Statute of Frauds (5 Ed.), sec. 282a; Biest v. Versteeg Shoe Co., 97 Mo. App. 137, 153,
The parties, wlio were free to contract, having by express words voluntarily postponed the performance for more than one year, the contract falls within the operation of the statute, notwithstanding the contingency of the death of either before the expiration of a year, for such was essentially within their contemplation at-the time. We believe the statute should be upheld and given effect as was done by the trial court rather than frittered away. The court very properly directed a verdict on the grounds of the statute, and the judgment should be affirmed. It is so ordered.