74 W. Va. 43 | W. Va. | 1914
Plaintiff claims recovery under an alleged verbal contract with defendants, partners as the Elk Lick Lumber Company. Defendants submit that a contract is not proved, and that in any event the alleged contract is within the statute of frauds as one not to be performed within a year. On these grounds they seek a reversal of the judgment which plaintiff obtained below.
The evidence on the question as to whether the alleged contract was actually entered into by a meeting of the minds .of the parties is conflicting oral testimony involving the credibility of witnesses who testified in the presence of the jury. It was within the province of the jury to find that plaintiff had such agreement with defendants as he claimed.
The case was tried on the theory of recovery on the executed contract. Though the contract were within the statute of frauds, plaintiff might have relied at the trial on the quantum meruit for the work done. Miller v. Wisener, 45 W. Va. 59. But his making up of the ease in his bill of particulars, in the introduction of his evidence, and in the instructions given on his behalf, shows a recovery sought on the force of the contract itself. The jury were called upon to say whether plaintiff was entitled by the terms of the contract to the amount for which it called, not whether he was entitled to a just and reasonable amount for services performed. So we must inquire whether the contract is one on which action can be so based. No action shall be maintained upon an agreement not to be performed within a year. Code 1913, ch. 98, see. 1. Is the contract between plaintiff and defendants within the statute? We hold that it is not. "This clause of the statute applies to such contracts only as, under a fair and reasonable construction of their terms, do not admit of a valid performance within a year in accordance with the intent of the parties; and a contract whose terms do not expressly postpone performance beyond a year or contain anything inconsistent with complete performance within that period, is not within the statute, although it be likely or expected to extend over a longer time. ’ ’ 29 Amer. & Eng. Enc. Law, 946. The agreement between plaintiff and defendants by its terms does not expressly postpone performance beyond a year. Nor does it contain anything inconsistent with complete performance within that period. ‘Even if it was
On the face of the agreement proved in this case the performance contracted for did not extend beyond the year. Nor do any circumstances properly entering into an interpretation of the terms of the agreement bring within the meaning of those terms any intention or contemplation that performance should not take place vdthin a year from that time. Says Mr. Minor: “The agreements contemplated by this clause of the statute are such as on their face have the performance postponed beyond one year, and not such as may or may not chance to be'performed wdthin that period.” 3 Mifior’s Institutes, (2nd ed.), 196. It was no part of the agreement between plaintiff and defendants that the service should continue more than a year, though it did chance to continue longer than that period. For all we know by the terms of the contract and the circumstances proper for a construction of those terms, the parties at the time of the making of the con
Directly applicable to the facts of the case at hand is the language of Mr. Justice Gray, in Warner v. Texas and Pacific Railway Co., 164 U. S. 418: “The parties may well have expected that the contract would continue in force for more than one year; it may have been very improbable that .it would not do so; and it did in fact continue in force for a much longer time. But they made no stipulation which in terms, or by reasonable inference, required that result. The question is not what the probable, or expected, or actual performance of the contract was; but whether the contract, according to the reasonable interpretation of its terms, required that it should not be performed within the year. No definite term of time for the performance of the contract appears to have been mentioned or contemplated by the parties; nor was there any agreement as to the amount of lumber to be sawed or shipped by the plaintiff, or as to the time during which he should beep up his mill. ’ ’
The contract was one on which the action could be maintained. Some minor points are raised, but upon the whole the case seems to have been properly and fairly submitted to the jury. Defendants contend that the two percent, should have been made to relate to net profits of the operation as a
Affirmed.