74 W. Va. 543 | W. Va. | 1914
Lead Opinion
In an action of assumpsit for the alleged breach of a contract for the cutting of timber plaintiff recovered a judgment for $500, and defendant was awarded this Avrit of error.
The contract was oral, and the principal question presented is, does it come within the seventh clause of the statute of frauds forbidding action upon ‘ any agreement that is not to be performed within a year,” unless it is in writing and signed by the party to be charged or his agent.
Plaintiff and defendant’s general manager Edward Schone-baum who employed him do not agree as to the terms of employment. Plaintiff testifies that he was employed in February, 1907, to cut all the bank timber from two certain tracts of land owned by defendant and deliver it at its mine, at $60 per thousand for 7 foot posts, $50 per thousand for 6% foot posts, $45 per thousand for 5% foot posts, and $45 per thousand for ties, and was to be paid monthly. According to his testimony no time was fixed for the completion of the agreement. He began work on the job in April, 1907, and continued until about the 15th November, 1910, when he says defendant employed another man to do the cutting and wrongfully discharged him. Plaintiff, admits' receiving pay for all the work he did. The suit is to recover damages on account'of profits that he would have made if he had been permitted to complete his job. On the other hand, Mr. Schonebaum testifies that he employed plaintiff to cut and deliver bank posts and ties, but for no specified time.. He denies that he employed him to cut all the timber on the tracts of land. They agree as to the price and time of payment. The jury must have found in favor,of plaintiff’s version of the contract, and, for the purpose of this review, we must assume that it was the contract between the parties. In his cross-examination, in answer to a question as to the length of time it would take him to cut the timber, plaintiff says: ‘ ‘ I don’t hardly know. I did not expect it to take more than five or six years. Q. And you calculated to take five or six years to cut it off? A. Yes, at the way they used the'posts.” Plaintiff’s expectation that it would take him five or six years to complete the job, does not bring the contract within the
From the terms of the agreement, as gathered from the testimony of plaintiff, it cannot be said that any time was agreed upon for its completion, nor that it was impossible of performance in a year. It can only be said that it was not likely to be performed, nor expected by plaintiff to be performed, within a year. This was held, in Kimmins v. Oldham, 27 W. Va. 259, not to be sufficient to bring an agreement within the statute. There is nothing in the testimony of plaintiff from which it can be said that the parties intended that the contract should not be performed within a year from the time of its making, nor is its subject matter such as to render its performance within a year impossible. The identical question presented in this case was recently decided by us in Beckley v. Zenn, 74 W. Va. 43, 81 S. B. 565, and we there held that: “A verbal contract the terms of which do not expressly provide for performance beyond a year or by fair and reasonable construction contain anything inconsistent-with complete performance within that time, is not within the statute of frauds.” That was an action to recover a balance claimed to be due plaintiff on a timber cutting contract, and defendant relied on the statute of frauds. In that case, as in this, plaintiff admitted that he expected to be more than a year in completing the contract. But nothing was said at the time he was employed as to when the work should be completed, and it appeared that it was possible to perform it within a year.
The statute is taken from 29 Car. II, Ch. 3, and the clause
In consideration that his creditor would not sue him during his lifetime a debtor promised that his executor should pay the debt after his death. The agreement was held not to be within the statute, because the debtor might die and the contract thereby be completed within a year. Wells v. Horton, 4 Bing. 40, 130 Eng. Rep. 683. So also, a contract to support a child for a guinea a month, so long as its father should think proper, was held not within the statute. The father had the option to limit the time of performance within a year. Souch v. Strawbridge, 2 C. B. 808, 135 Eng. Rep. 1161. An oral agreement between husband and wife compromising legal proceedings between them, whereby they agreed to live separate -and apart, the husband agreeing to pay the wife a weekly sum and she agreeing to maintain herself and the children thereon, was held not to be within the statute. In his opinion in this case, after considering previous decisions construing the statute, Lord Justice Lindloy says: “The effect of these decisions is that, if the contract can by a possibility be performed within the year, the statute does not apply.” McGregor v. McGregor, 21 Q. B. 424.
The great weight of authority in the United States is in line with the English cases. In Peters v. Westborough, 19 Pick. 364, 31 Am. Dec. 142, the supreme court of Massachusetts held, that an oral agreement to support a child twelve years of age, until she was eighteen, was not within the statute of frauds. Judge Wilde in his opinion says: “If she (the child) had continued in the plaintiff’s service, and lie had supported her, and she had died within a year after the making of the agreement, it would have been fully performed. And an agreement by parol is not within the statute, when by the happening of a contingency it might be performed within a year.”
Roberts v. Rockbottom Co., 7 Metc. 46, was a case involving an oral contract whereby said company had employed plaintiff and had agreed that, “he should serve them, upon
A railroad company agreed with the landowner that, in consideration of permission to build its road over his land, it would construct and maintain cattle guards on each side of the road. The supreme court of Arkansas held the contract not to be within the statute, because the contract was contingent on the use of the land for a railroad which might have ceased within a year. Arkansas M. &c. R. Co. v. Whitley, 54 Ark. 199, 11 L. R. A. 621. A similar decision is found in Sweet v. Dasha Lumber Co., 56 Ark. 629.
In Warner v. Texas &c. Ry. Co., 164 U. S. 418, 41 Law Ed. 495, decided in 1896, it was held that an oral agreement by the railroad company to put down the rails and maintain a switch, as long as Warner needed it, to a point where he proposed to erect a sawmill, if he would grade the road and furnish the ties, was held not to be within the Texas statute condemning contracts not to be performed within a year unless in writing, although it appeared from Warner’s own testimony that he expected he would need the switch for ten years. In an elaborate opinion prepared by Mr. Justice Gray in that case he reviews a long list of English and American cases on this particular section of the statute of frauds. In the course of his opinion the learned judge says: '‘ The contract of the railroad company was with, and for the benefit
There being no time fixed by the terms of the agreement for its completion, and nothing to show that it could not, or might not, have been fully performed within a year, the contract set up by plaintiff in this case is not within the statute of frauds.
It was not error to exclude defendant’s special plea of the statute of frauds. The defense could be made under the general issue, which made it necessary for plaintiff to prove every fact essential to his right of recovery. If it had appeared that the agreement was not to be performed within a year from the time it was made, plaintiff could not have recovered, it being admitted that it was not in writing. Under the practice in this state and in Virginia, it is generally understood that any defensé can be made under the general issues of nil debet and non assumpsit, except the statute of limitations, bankruptcy and tender. Hogg’s Pl., Sec. 220; Burke’s Pl. & Pr., Sec. 93; Bank v. Kimberlands, 16 W. Va. 555, opinion of Judge Green at page 574; and Trust Co. v. Crawford and Ashby, 69 W. Va. 109; Eaves v. Vial, 98 Va. 134. But partial payments and sets off, in order to be proven, must be especially pleaded, or notice -of them given in an account filed. Sec. 4, Ch. 126, serial section 4824, Code 1913;
It was not error to refuse defendant’s instruction .No. 1, which would have told the jury to find for the defendant because the plaintiff’s evidence was insufficient to support a verdict in his favor.
The judgment is affirmed.
Affirmed.
Dissenting Opinion
(dissenting):
I am unable to concur in the opinion and decision in this case. The testimony as to the terms of the contract, the subject matter and the facts and circumstances disclosed, clearly show the agreement was to cut the timber from certain tracts of land, as it was to be used in the mining operations, and no faster and, as it could not be used in one year, nor under five or six, it could not be cut in any shorter period. Therefore, the contract was not to be performed within a year. I am unable to see the difference, as regards the terms of the statute, between a contract made in express terms to run more than a year and one whose general and indefinite terms, read in the light of the subject matter, necessarily make it run more than a year, and I do not believe the authorities recognize any difference between them. Classification is sometimes mistaken for conflict of authorities. Nearly all the cases relied upon in the majority opinion involve the elements of personality and probability of death terminating the operation of the contract. Nothing of that kind appears here. I think this contract is of the same class as those involved in Boydell v. Drummond, 11 East. 142, in which there was a contract by subscription to take a series of publications to be completed in three annual installments; Packett Co. v. Sickles, 5 Wall. 580, in which an oral contract by a steamboat company to use, on one of its steamboats, a patent device, during the continuance of the patent, a period of about twelve years, if the boat should last so long, was held to be within the statute; and Herrin v. Butters, 20 Me. 119, in which there was a contract to clear three acres of land, turning over to the lessor one acre each year.