Opinion
No. 31326.
November 12, 1934. Suggestion of Error Overruled December 10, 1934.
1. FRAUDS, STATUTE OF.
Oral contract for personal services not performable within fifteen months is unenforceable (Code 1930, section 3343 (d)).
2. FRAUDS, STATUTE OF.
Where oral contract is unenforceable under statute of frauds, parties thereto may thereafter enter into new oral contract identical in terms with former, but recognition of former contract does not result in formation of new contract unless parties intended thereby to enter new contract (Code 1930, section 3343 (d)).
3. FRAUDS, STATUTE OF.
Where oral contract for personal services was unenforceable because not performable within fifteen months, evidence that in subsequent conversation employer declined to put contract in writing, but stated what he had thereunder agreed to pay and that he would comply therewith, held not to show formation of new contract which would be enforceable (Code 1930, section 3343 (d)).
APPEAL from the Circuit Court of Marshall County.
Hindman Doxey, of Holly Springs, for appellant.
An action shall not be brought whereby to charge a defendant or other party upon any agreement which is not to be performed within the space of fifteen months from the making thereof, unless the same shall be in writing.
Paragraph (d), section 3343, Mississippi Code of 1930.
If this contract was for the year 1930 and Moore could not discharge employee Smart because of unsatisfactory work, then the period covered by the contract was for the entire year beginning January 1, 1930, and ending December 31, 1930, and, therefore, within the statute of frauds and unenforceable, and Moore is not liable to Smart in any amounts whatsoever.
If Moore had a perfect right to discharge Smart when his services became unsatisfactory, then he, Moore, would incur no liability upon discharging Smart; if Smart decided to quit his employment, Moore would have no recourse. In either event, the plaintiff cannot recover.
Gulfport Cotton Oil Fertilizer Co. v. Reneau, 94 Miss. 904; Mallett v. Lewis, 61 Miss. 101; 25 R.C.L., p. 459, sec. 34, and page 461, para. 37, page 463, para. 40, and page 479, para. 60; 27 C.J., p. 186, para. 112.
According to the testimony of the plaintiff and his witnesses it is shown that no new contract was entered into on December 30, 1929. If, as a matter of fact, any conversation was had by plaintiff Smart with defendant Moore relative to the contract of employment for the year 1930, it was merely a restatement and acknowledgment of the August, 1929, contract and this in no wise could create a new contract or cause the statute of frauds not to be applied in this case.
A mere re-statement of the terms of the contract on the day of its commencement is not sufficient to take it out of the operation of the statute.
25 R.C.L., p. 480, para. 61; 27 C.J., p. 187, para. 115, and page 174, para. 87; Odell v. Webendorfer, 50 N.Y. App. Div. 579, 64 N.Y.S. 451, 5 Ann. Cas. 3307; Gottlieb v. Gins, 102 Misc. 686, 169 N.Y.S. 599. Lester G. Fant, Sr. and Jr., of Holly Springs, for appellant.
The contract alleged was for employment during the calendar year 1930; having been made in August, 1929, it is within the statute of frauds and no recovery can be had upon it.
Section 3343, par. D, Mississippi Code of 1930; Mallett v. Lewis, 61 Miss. 105; Gulfport Cotton Oil Co. v. Reneau, 94 Miss. 904, 48 So. 292.
There was no evidence of any contract between the plaintiff and defendant which was not barred by the statute of frauds.
The agreement is deemed to be made, within the meaning of the rule, at the time when the contract is assented to by both parties.
27 C.J. 174.
Where a contract is fully entered into on a particular day, a subsequent oral restatement of its terms, or other oral statement relative to it, which does not amount to the making of a new contract, does not defer the date when the year begins to run nor take the case out of the statute.
Oddy v. James, 48 N.Y. 685; Booker v. Heffner, 95 App. Div. 84, 88 N.Y.S. 499; Odell v. Webendorfer, 50 App. Div. 579, 64 N.Y.S. 451; Gottlieb v. Gins, 102 Misc. 686, 169 N.Y.S. 599; Bierman v. Simon, 110 N.Y.S. 267; Goldberg v. Cohen, 110 N.Y.S. 185; Berrien v. Southack, 7 N.Y.S. 324.
Smith Smith, of Holly Springs, for appellee.
Our court has uniformly held that it is a well established rule that a verdict of a jury will not be disturbed, unless it is manifest from the whole record that it was clearly wrong.
Kelly v. Miller, 39 Miss. 17; New Orleans R.R. Co. v. Hurst, 36 Miss. 660; Yazoo, etc., R.R. Co. v. William, 67 Miss. 18, 7 So. 279; Kansas City, etc., R.R. Co. v. Cantrell, 70 Miss. 329, 12 So. 344; Woodson v. Owens, 12 So. 207; Holmes v. Simon, 71 Miss. 245, 15 So. 70; Dixon v. Parker, 3 H. 219; Lee v. Guice, 13 S. M. 656.
All of the instructions are to be read together, and the whole of the instructions are to be considered in determining whether they state the law correctly vel non.
Yazoo, etc., R.R. Co. v. Smith, 82 Miss. 656, 35 So. 168; Yazoo, etc., R.R. Co. v. Williams, 87 Miss. 344, 39 So. 489; Mississippi Central R.R. Co. v. Hardy, 88 Miss. 732, 41 So. 505; Cumberland Telephone Co. v. Jackson, 95 Miss. 79, 48 So. 614; Hitt v. Terry, 92 Miss. 671, 46 So. 829.
The various quotations from Corpus Juris are irrelevant, based as they are on the mere restatement of the previous contract, which is not the case here at all. Our position is sustained by the court in Hollweg v. Shafer Brokerage Co., 197 Fed. Rep. 693, where the court said: "If the court was mistaken in finding that the parties had not agreed upon a contract previous to November 1, it is difficult to see how defendant was prejudiced thereby, in view of his contention that no valid contract was actually made. We know of no principle making it incompetent for parties who have made an agreement unenforceable under the statute of frauds, because not to be performed within one year from its making, afterwards, and at a time when the statute of frauds would not apply orally to modifying and enlarging their former agreement, and to renew it as so enlarged and modified."
Catlett v. Burke, 80 S.E. 611; San Antonio Light Publishing Co. v. Moore, 101 S.W. 868; Gibson Moore Mfg. Co. v. Meek, 71 Miss. 614, 15 So. 789; Pugh v. Gusset, 101 So. 691, 136 Miss. 661, 38 A.L.R. 678; Odeneal v. Henry, 70 Miss. 172, 12 So. 154; Hollweg v. Shaefer Brokerage Co., 197 Fed. 693.
In an action for breach of a contract of employment for one year in which the defendant pleaded the statute of frauds, evidence held to make a question for the jury as to whether the contract was made on the day the employment commenced.
Statute of Frauds, Cent. Dig., No. 378, Dec. Dig., No. 159, Statute of Frauds, No. 131.
Though the parties to an oral contract of employment for one year agreed upon the terms thereof some weeks before the employment commenced, and it was therefore void under the statute of frauds, they might cure the formal defects by renewing or restating the contract on the day that the performance of the services commenced.
Statute of Frauds, Cent. Dig., Nos. 283, 284; Dec. Dig., No. 131; Trial, No. 260, Actions for Wrongful Discharge Instructions; Trial, Cent. Dig., Nos. 651-659; Dec. Dig., No. 260; San Antonio Light Pub. Co. v. Moore, 101 S.W. 868.
Argued orally by Lester G. Fant, for appellant.
Claiming that the appellant had breached a contract by which he employed the appellee to render personal services for him, the appellee obtained the judgment appealed from therefor. One of the appellant's complaints is that the court below erred in refusing his request for a directed verdict.
The evidence discloses that in August, 1929, the appellant and the appellee entered into an oral agreement that the appellee should render certain personal services to the appellant for the calendar year 1930, his compensation therefor to be fifty dollars a month for the first eight months, and sixty dollars a month for the remaining four months of the year.
This contract is, of course, unenforceable under paragraph (d) of section 3343, Code of 1930, for the reason that it was not performable within fifteen months from the making thereof. The appellee admits this, but says that he entered into another oral contract with the appellant on December 30, 1929, identical with the one made in August, 1929.
The appellant's place of business, with reference to which the contract of August, 1929, was made, was in a rural community, and in December, 1929, the appellee moved his residence to the appellant's premises preparatory to beginning work under the August, 1929, contract.
The appellant testified that the appellee had agreed to pay a debt he owed another provided the appellant would give him a promissory note therefor indorsed by H.M. Hataway; that on December 30, 1929, he (appellee) and Hataway had a conversation with the appellant during the course of which a new contract was made identical with the contract of August, 1929. What then occurred, according to the appellee, will be stated as nearly as possible in his and Hataway's language, the latter having also given his testimony. First as to the appellant.
"The reason for the second contract was between this time from the August contract up to December 30, he hired another man, Mr. Hoover, and when I got up there I saw where I didn't think he needed both of us, and I didn't want any misunderstanding about it, I wanted to be so I could rely on it. I had a wife and family there to support. . . .
"Q. Tell what was said to Mr. Moore about making a new contract. A. He had went there to draw up a note for Hataway and me to sign it. I told him business was business, and I wanted a thorough understanding what I was to get for 1930, and the very same words was passed in that. I said to Mr. Moore, `I am to get fifty dollars for the first eight months and sixty dollars for the last four months,' and he said, `yes, that is right.' . . .
"Q. Did you tell him, `I am not satisfied with my former contract and I want to make a new contract?' A. No sir. . . .
"Q. What was said by you to Mr. Moore at that time about wanting a new contract in writing? A. We were drawing up the note and Hataway said to me, `Business is business and I want to hear this trade made in my presence as it is an oral contract,' and I asked him about a written contract and he said, `If you are not afraid of me, I am not afraid of you.'"
Now as to the testimony of H.M. Hataway:
"Q. Tell what happened there. A. This note (referring to the promissory note hereinbefore mentioned) was wrote. He was fixing to write it and I asked for the contract before I would sign the note.
"Q. Why did you want a contract? A. Because I wanted to know the terms this money was to be paid back before I signed it.
"Q. Tell what the contract was, if any, was made there. A. We first asked for a written contract and Mr. Moore refused. He said, `I will give him fifty dollars for the first eight months and sixty dollars for the last four months.' . . .
"Q. Did Mr. Moore tell you what the terms of the contract was? A. He told me what he was going to pay him. . . .
"Q. Why did they make a new contract? A. Because this note was to be made and we wanted a written contract. . . .
"Q. And Mr. Moore said, `You have already got a contract made here in August, and I will not give you a written contract. A. He said, `That does not amount to anything. I am a man of my word and take you to be one of yours.' . . . Mr. Moore told me what he was to get. He said, `I have hired him for 1930, he is to be in my capacity as clerk for 1930,'" and much more to this effect.
All this was denied by the appellant.
Where an oral contract is unenforceable under paragraph (d) of section 3343, Code of 1930, the parties thereto may, of course, thereafter enter into a new oral contract though identical in terms with the former, but a recognition of the former contract does not result in the formation of a new contract, unless it appears therefrom that the parties intended thereby to enter into a new contract. 1 Williston on Contracts, sec. 503; 25 R.C.L. 480; 27 C.J. 174-186.
It seems clear from the conversation, as detailed by the appellee and Hataway, that all that here occurred was that the appellant declined to put in writing the contract made in August, but stated what he had thereunder agreed to pay the appellee, and that he (appellant) would comply therewith.
While there are authorities to the effect that a mere restatement of the terms of a former unenforceable contract constitutes the making of a new contract, the weight of authority, as will appear from notes to the texts hereinabove cited, and reason, is to the contrary.
The appellant's request for a directed verdict should have been granted.
Reversed, and judgment here for appellant.