Allen v. Moyle

• Decision Date: 26 December 1961
• Docket Number: No. 9028,9028
• Citation: Allen v. Moyle, 84 Idaho 18, 367 P.2d 579 (Idaho 1961)
• Parties: Joe ALLEN, Plaintiff-Appellant, v. Rex MOYLE, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 579

367 P.2d 579

84 Idaho 18

Joe ALLEN, Plaintiff-Appellant, v. Rex MOYLE, Defendant-Respondent.

No. 9028.

Supreme Court of Idaho.

Dec. 26, 1961.

Earl E. Reed, Nampa, D. L. Carter, Weiser, for appellant.

Harold Ranquist, Boise, for respondent.

KNUDSON, Justice.

Appellant, Joe Allen, commenced this action against respondent, Rex Moyle, alleging two separate causes of action.

As a first cause of action appellant alleges:

'I.

'That on or about the 27th day of August, 1959, the defendant entered into an oral agreement of employment with the plaintiff, which said agreement was to be reduced to writing and signed by the parties, that plaintiff entered upon performance of said contract agreement and continued to perform the same until December 11, 1959, at which time the defendant prevented the continuation of said employment by causing the said plaintiff to be arrested and confined in jail in Washington County, Idaho.

'II.

'That said contract of employment was to continue for a period of seven years from December 1, 1959. That plaintiff was to operate and manage certain owned and leased properties of the defendant in Washington County, Idaho, and receive as compensation therefore the sum of $250.00 per month with the right to feet up to 100 head of cattle of the plaintiff's upon the property in Washington County, Idaho, together with such feed as grown upon the property for the feeding of the plaintiff's permissive cattle.

'III.

'That said agreement was not reduced to writing by the defendant in spite of repeated requests of plaintiff for the defendant to do so.'

Appellant further alleges that said agreement has been partially performed by him and that he has been damaged in the sum of $5000.00 by reason of respondent's failure to perform.

Appellant also alleges that at the commencement of this action respondent was indebted to him in the amount of $110.00 for labor performed; $100.00 as costs and expenses of moving from Canyon County to Washington County and $120.00 as rental value of residence furnished appellant under terms of employment.

For a second cause of action, appellant alleges:

'I.

'That on or about the 11th day of December, 1959, the plaintiff while in the employ of the defendant in Washington County, Idaho, and engaged in the business of the defendant, was arrested by the Sheriff of Washington County, Idaho, upon a complaint issued and made by the defendant herein.

'II.

'That the plaintiff was taken into custody by Sheriff and a written complaint was sworn out by the defendant against the plaintiff herein by the defendant charging plaintiff with a felony offense.

'III.

'That the plaintiff was held in confinement in the Washington County jail from December 11, 1959, until December 15, 1959, when the plaintiff was released from said confinement after the preliminary hearing showing that no offense had been committed by the plaintiff.'

Appellant further alleges that the arrest and confinement was without justification, cause or reason; that he has been damaged, injured and hurt by the malicious and false arrest and confinement caused by respondent in the sum of $25,000.00.

Written interrogatories were served upon and answered by appellant. The deposition of Frank H. Joseph, an attorney-at-law, residing in Weiser, was regularly taken pursuant to Rule 30, I.R.C.P. and the affidavit of respondent was regularly filed. Thereafter respondent moved to dismiss each cause of action upon the ground that it does not state a cause of action upon which relief can be granted. Pursuant to stipulation the motion to dismiss was presented and treated as a motion for summary judgment. A summary judgment was thereafter rendered in favor of respondent on all claims of relief except (1) the issue of whether appellant is entitled to wages as alleged and (2) the issue of whether appellant is entitled to recover any moving expenses. This appeal is taken from the order of said summary judgment.

Appellant assigns error to the entry of the summary judgment claiming that the matter was not properly before the court. This assignment is only superficially argued by appellant. The record discloses that under date of October 3rd counsel for the respective parties agreed, in open court, to treat the motion to dismiss as a motion for summary judgment. At the time said motion was heard by the court the following mentioned papers had been filed in addition to the pleadings involved, to-wit:

(1) interrogatories (53 in number) had been served upon and answered by appellant;

(2) affidavit of respondent wherein it is stated that respondent relied upon the advice of his attorney (Frank H. Joseph) in signing the criminal complaint against appellant, after giving his said attorney a full and fair disclosure of the facts;

(3) deposition of Frank H. Joseph, an attorney-at-law (taken under direct and cross-examination);

(4) affidavit of appellant in support of both alleged causes of action;

(5) transcript of the testimony and proceedings had before the probate court during the preliminary hearing of the criminal action filed by respondent against appellant.

The trial court certified that said records, papers and files in addition to the pleadings were used by him on the hearing of said motion. The procedure here followed is authorized under Rules 12(b) and 56, I.R.C.P. and having stipulated that the motion be treated as for summary judgment, appellant's said contention is without merit.

Error is assigned to the action of the court in granting a summary judgment in favor of respondent regarding the alleged oral contract as stated in appellant's first cause of action. Not only is it alleged in the complaint that the oral contract of employment 'was to continue for a period of 7 years from December 1, 1959', it is likewise stated in appellant's affidavit of October 28, 1960 in opposition to the motion to dismiss.

I.C. § 9-505 provides:

'In the following cases the agreement is invalid, unless the same or some note or memorandum thereof, be in writing and subscribed by the party charged, or by his agent. Evidence therefore, of the agreement can not be received without the writing or secondary evidence of its contents:

'1. An agreement that by its terms is not to be performed within a year from the making thereof. * * *'

The alleged contract here involved is not by its terms to be performed within a year of the making thereof and is clearly invalid. However appellant contends that the contract is taken out of the statute of frauds by reason of part performance by appellant.

The date of entering upon the performance of the contract is not clearly stated in the complaint although it is stated in appellant's affidavit that from October 24, 1959, until appellant's arrest on December 11, 1959, he was working under the alleged agreement. However, since for the purpose of considering the motion involved, the complaint should be construed most favorably to appellant, it will be here considered that appellant entered upon the performance of the alleged contract on August 28, 1959, and continued to perform until December 11, 1959. It is also alleged, as part performance, that on October 24, 1959, appellant moved his family from Canyon County to Washington County.

The alleged contract concerned the employment of appellant to manage and operate certain properties of respondent; it did not involve real estate, nor was there any claim of fraud. The rule is firmly established by the great weight of authority that a contract for personal services which by its terms are to be rendered for a period in excess of one year is within the meaning of the statutory provision requiring contracts not to be performed within a year to be in writing. 49 Am.Jur. 410, § 52; Tostevin v. Douglas, 160 Cal.App.2d 321, 325 P.2d 130; Newbanks v. Ash Grove Lime & Portland Cement Co., 127 Kan. 89, 272 P. 112; Seymour v. Oelrichs, 156 Cal. 782, 106 P. 88. The general rule as to whether the equitable doctrine of part performance is applicable to such contracts is...