184 P. 954 | Cal. Ct. App. | 1919
The demurrer of defendant on general and special grounds was sustained to the third amended complaint of the plaintiff and leave to further amend was denied. Judgment of dismissal followed, from which plaintiff appealed.
The cause of action attempted to be alleged was one for damages sustained by the plaintiff through the refusal of the defendant to use and pay for the services of the plaintiff after having employed him as an actor to appear in plays produced by the defendant in his theater at Los Angeles. Plaintiff alleged that the engagement was for a period of one year. It is respondent's contention that the complaint in its allegations showed a case falling within the statute of frauds, and that plaintiff could not recover because the term of employment was not fixed in any writing. An agreement which is not to be performed within one year from the making thereof, in order to be valid, must be expressed in writing. (Civ. Code, sec.
"Mr. Standing,
"I will pay you one hundred and fifty ($150.00) dollars per week in Los Angeles for the length of your engagement there, under the terms of the usual theatrical contract.
"As you have reduced your salary with me I will be very glad to pay the transportation and sleeper of Mrs. Standing two mo's hence to Los Angeles.
"This will hold good only when we execute regular contract, O. M. (Signed)
"Yours very truly,
"O. MOROSCO." (Signed)
[2] The memorandum contains no words fixing the term of service. The compensation was to be paid at a weekly rate; hence the term should be construed as being from week to week. This without reference to section 2010, of the Civil Code, which imposes that rule of construction upon contracts for the employment of a "servant." A servant is defined in the preceding section to be one employed to render personal service "otherwise than in the pursuit of an independent calling," and one who remains entirely under the direction and control of his master. It is not alleged what "the terms of the usual theatrical contract" were — they may have related wholly to matters of detail. And so the writing does not help the complaint except to show that the defendant agreed to execute "the usual theatrical contract." [3] This promise would be of no more potency when expressed in writing than by parol.
[4] We cannot conclude that the case alleged is one showing that plaintiff is entitled to enforce his contract, which is admittedly within the statute of frauds. That he suffered detriment because of any action taken by him and in reliance *248 upon the promises of defendant, the facts alleged do not show. Neither monetary loss nor great personal inconvenience can be presumed to have resulted to him. His property in New York may have been disposed of at a profit; the other employment tendered him may have been undesirable, of short duration, or covered by small prospective compensation. The change of residence from New York to Los Angeles may have been an agreeable one. The contract that plaintiff relinquished under which he was receiving two hundred dollars per week, may have been one for weekly employment only. Assuming against the pleader, as we must, all facts reasonably consistent with the facts alleged, but adverse to the plaintiff, it cannot be said the complaint makes out a case entitling the plaintiff to the relief sought.
The judgment appealed from is affirmed.
Conrey, P. J., and Shaw, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 6, 1919.
All the Justices concurred, except Wilbur, J., and Lennon, J., who did not participate.