Rease v. Clarksville Cotton Oil Co., 248 S.W. 434

Rease v. Clarksville Cotton Oil Co.

248 S.W. 434 | Tex. App. | 1923

The court did not err, we conclude, in excluding the evidence concerning the parol agreement and in directing a verdict for the defendant in error. The statute of frauds is for the purpose of preventing the reception of testimony which would otherwise he competent, and the fifth clause of article 3965, Revised Statutes, is applicable to the parol contract pleaded and testified to by the plaintiff in error. "Any agreement," according to the fifth clause of the above article, "which is not to be performed within the space of one year from the making of it," is unenforceable if it be not reduced to writing by the parties thereto. The language of the clause has the effect of expressly "limiting," *435 as stated in Bateman v. Maddox, 86 Tex. 546, 26 S.W. 51, "both the time of commencement and continuance" of the agreement such as it prohibits the enforcement of. The "one year" begins and is to be computed "from the making of it," the agreement. Consequently, such a contract as the one here in suit is within the terms of the statute. 2 Elliott on Contracts, § 1179; Moody v. Jones (Tex. Civ. App.) 37 S.W. 379; Publishing Co. v. Moore, 46 Tex. Civ. App. 259, 101 S.W. 867. According to the evidence, on Thursday, August 5, 1920, the plaintiff in error acceded to the proposition of the manager of the oil company. In legal effect the contract on that date became instantly binding on the parties, and neither party could subsequently recede from the contract without the consent of the other. This contract was, by its terms, for a year's service; performance to begin at a future time appearing in the facts to be on August 23, 1920. The contract, as seen, by its terms is not capable of entire and complete execution within a year from the date of "the making of it," because the period of service agreed upon was to extend one year from the time "performance commenced." "Performance commenced" on August 23, 1920. Therefore there would not be an entire and complete execution of the contract, if its terms were followed, before and until August 23, 1921, showing an excess of 18 days above one year from the date of the making of the contract on August 5, 1920. The excess of 18 days from August 5th to August 23d was just as efficient as a longer period to render the agreement void under the statute. Indeed, an excess of the period of "one year," however short, is sufficient to satisfy the terms of the statute and make such agreement unenforceable.

Affirmed.