Abba v. Smyth

• Decision Date: 02 December 1899
• Citation: 59 P. 756,21 Utah 109
• Court: Utah Supreme Court
• Parties: JOSEPH ABBA, APPELLANT, v. D. A. SMYTH, RESPONDENT

59 P. 756

21 Utah 109

JOSEPH ABBA, APPELLANT, v. D. A. SMYTH, RESPONDENT

Supreme Court of Utah

December 2, 1899

Appeal from the Second District Court, Weber County, Hon. H. H Rolapp, Judge.

Action by the plaintiff to recover damages on account of an alleged breach of a written contract. From a judgment for defendant plaintiff appealed.

Reversed and remanded.

Herbert R. Mac Millan, Esq., and Hiram H. Henderson, Esq., for appellant.

An agreement in its first inception may lack mutuality, and may have no consideration expressed, yet certain acts may afterward be done by the party not bound in the first instance, which will give the agreement mutuality and a consideration. Jones v. Snow, 2 P. R., 29; Harvesting King Co. v. Mitchell, et al., 89 F. 173; Bloom v. Hazard, 37 P. (Cal.), 1037; Reedy v Smith, 42 Cal. 250; Boyd v. Brincklin, 55 Cal. 427; Brooks v. Leathers, 70 N.W. 1099; Mc Cartney, et al. v. Glassford, 20 P. 423; Clarn v. Grayson, 46 P. 428-429; Detroit H. & L. Co. v. Stevens, 16 Utah 181.

The agreement in controversy was signed by both parties, so that it is taken out of the statute of frauds, and even if the same had not been signed but had been executed, the court would not permit the defendant to take advantage of the statute of frauds. Lynch v. Coviglio, 17 Utah 112.

W. L. Maginnis, Esq., and Messrs. Richards & Allison, for respondent.

"A contract must be mutual as to the remedy, and a contract will not be enforced against a party who does not possess the power under the contract to enforce it upon his part." Ryan v. Dumpy, 1 P. 710; Richardson v. Hardwick, 106 U.S. 252; Wilkinson v. Heavenrich, 58 Mich. 574.

"Whatever the rule may be when the contract is fully performed, it is well settled that the part performance will not give a right to insist on the completion of the residue or recover damages from the opposite party for his refusal to allow the accomplishment of the whole." Peter v. Compton, 1 Smith L. Cas., 631, (8th ed.); Utah L. & T. Co. v. Garbutt, 23 P. 758; Utah L. & T. Co. v. Garbutt, 6 Utah 342.

The doctrine that part performance of a contract will make valid a contract invalid by the statute of frauds is exclusively the creature of equity, and applies only to contracts relating to land. Mc Elroy v. Ludlum, 32 N. J., Eq., 828; Wheeler v. Frankenthal, 76 Ill. 124; Osborn v. Kimball, 41 Kan. 187; Comes v. Lawson, 16 Conn. 246; King v. Welcome, 5 Gray 45; Utah L. & T. Co. v. Garbutt, 6 Utah 342.

"A party performing services under a contract invalid by the statute of frauds can not sue upon the contract to recover compensation for his services. The only remedy in such cases is upon a quantum meriut." Mc Elroy v. Ludlum, 32 N. J., Eq., 828; Browne on Statute of Frauds, Sec. 124; Towsley v. Moore, 30 O. S., 184; Keene on Quasi Contracts, Sec. 127.

Miner, J., delivered the opinion of the court. BARTCH, C. J., concurs. BASKIN, J., concurring in result.

OPINION

Miner, J.

STATEMENT.

This action was brought by plaintiff Abba against defendant Smyth to recover damages alleged to have been sustained on account of the alleged breach of a written contract, of which the following is a copy:

"Ogden, Utah April 7, 1898.

"This agreement entered into between D. A. Smyth, of Ogden, Utah party of the first part, and Joseph Abba, party of the second party, of Warren, Utah. It is agreed by the party of the first part to employ the party of the second part to work on the farm owned by the party of the first part, the party of the second part to receive half of all the crops raised on the farm, the party of the first part to receive thirty-five (35) tons of hay and fifty (50) bushels of oats to be taken out from the farm before the division. The remainder to be equally divided between the two parties to this agreement. The party of the first part agrees to furnish all seeds, farming implements, horses and wagons, and the board and lodging of the party of the second part, and to furnish a man to help on the farm. And further agrees to furnish water to mature crops. This agreement to continue during the farming seasons of the years 1898, 1899, and 1900.

D. A. SMYTH,

JOSEPH ABBA."

Witness, E. Auth.

Plaintiff alleges, in substance, in his complaint that in pursuance of said contract he did on the 7th day of April, 1898, enter upon defendant's farm, and did work and performed services thereon to and including the 27th day of November, 1898; second, that he fully and faithfully performed, so far as he has been permitted by defendant, the conditions and agreements contained in said contract on his part to be performed; that defendant has failed and refused to carry out his part of said contract, in that he has refused and still refuses to furnish the farming implements, horses, and water to mature the crops as agreed, and thereby the crops were damaged and injured to his great damage; and third, that by the terms of the contract it was mutually agreed by the parties that defendant was to employ plaintiff, and the plaintiff was to serve the defendant during the years 1898, 1899, and 1900 by working on defendant's farm on shares; but that defendant failed to carry out his part of the contract and refused to permit plaintiff to fulfill his part thereof, and has repudiated the same and drove the plaintiff from off said farm, and threatened him with violence if he remained thereon.

That plaintiff has offered and endeavored to perform his part of said contract, and has at all times been ready and willing so to do, and by reason of the breach of said contract by defendant aforesaid, plaintiff has been thrown out of employment, and has been unable to obtain other employment after reasonable efforts, to his damage.

The answer admits the execution and delivery of the contract; denies the allegations in the third count, in part; alleges that the plaintiff neglected said farm and permitted the crops thereon to be damaged; that plaintiff remained away from said farm at various times, and finally abandoned it; that defendant performed, on his part, all conditions provided in the written contract, and sets up a counter-claim for its violation by plaintiff.

Plaintiff testified that on the 7th day of April, 1898, he commenced work on said farm, plowed, planted corn, beans, trimmed trees, irrigated land, and did all the work he could do, and neglected nothing, that defendant's farm consisted of 160 acres, half of which was under cultivation and in crops.

Plaintiff then offered testimony tending to show how many bushels of wheat were raised, and under the third count offered to show that on the 7th day of April, 1898, he entered upon the farm in pursuance of the contract, which was delivered to him by the defendant, and worked continuously thereon until November, 1898; that defendant then ordered plaintiff off the farm, and he was compelled by him to leave it; that no water was furnished by defendant to irrigate the crops as agreed, and that damages to the plaintiff resulted therefrom.

Defendant objected to this testimony on the grounds that it was immaterial, irrelevant, and incompetent, and that no cause of action is stated; that the written instrument is a unilateral agreement, and only binds defendant: that plaintiff was not bound by said contract, and that the same is void for want of mutuality; that it is not to be performed within one year, and is void under Sec. 2467, Rev. Stat., and parol evidence is inadmissible to vary or add to its terms. The objection was sustained, and plaintiff duly excepted.

Plaintiff then offered to show that 35 tons of hay and 50 bushels of oats were delivered to defendant by plaintiff as agreed in the contract; that it was understood and agreed that plaintiff should go on and work the farm for three years under that agreement.

Plaintiff also offered to show what crops were raised on the farm in 1898, as bearing upon the question of damages, and failure on the part of the defendant to furnish water for irrigation. This was objected to as before, and the objection sustained by the court, to which exception was taken. Thereupon, under instructions from the court, the jury brought in a verdict in favor of the defendant of no cause of action. This appeal is taken from the judgment.

After stating the facts, Miner, J., delivered the opinion of the court.

The first question for determination is, Was the contract void under the statute of frauds? Sec. 2467. Rev. Stat., 1898, reads as follows: "Certain agreements void unless in writing. In the following cases every agreement shall be void, unless such agreement or some note or memorandum thereof be in writing and subscribed by the party to be charged therewith.

Under this section unless the essential terms of the contract can be determined from the contract itself, it is within the statute of frauds, and if thus defective, the defect can not be supplied by parol proof, for by admitting parol testimony to supply the essential parts of the contract, would be to restore the mischief which the enactment of the statute of frauds was framed to prevent. 2 Kents Comm. (12th ed.), 511; Williams v. Morris, 95 U.S. 444, 24 L.Ed. 360; Norris v. Lane, 16 Johns (N.Y.) 151.

While this is true, yet "Any note or memorandum in writing which furnishes evidence of a complete and practical agreement is sufficient under the statute, and parol evidence is admissible to explain latent ambiguities, and to apply the instrument to the subject-matter." Williams v. Morris, 95 U.S. 444, 24 L.Ed. 360; Barry v. Coombe, 1 Pet. 640; Clark v. Burnham, 2 Story 131; Story on Sales, 257; Brown v. Markland, 16 Utah 360, 52 P. 597.

In Pomeroy on Contracts, Sec. 85, the following rule is laid down:

"The memorandum, whether consisting of one...