Barnes v. P. & D. Mfg. Co.

• Decision Date: 22 September 1939
• Docket Number: No. 38.,38.
• Citation: 123 N.J.L. 246,8 A.2d 388
• Parties: BARNES v. P. & D. MFG. CO.
• Court: New Jersey Supreme Court

8 A.2d 388

123 N.J.L. 246

BARNES

v. P. & D. MFG. CO.

No. 38.

Court of Errors and Appeals of New Jersey.

Sept. 22, 1939.

The CHIEF JUSTICE, Justices DONGES, HEHER, PERSKIE, and PORTER, and Judges WOLFSKEIL and HAGUE, dissenting.

Appeal from Supreme Court.

Action by Harold E. Barnes against the P. & D. Manufacturing Company for compensation for labor and the use of plaintiff's alleged inventions in the manufacture of automotive accessories. From a judgment nonsuiting the plaintiff on the first and second counts of his complaint and directing a verdict on the third count for 6 cents damages, plaintiff appeals.

Affirmed.

Joseph J. Corn, of Newark, for appellant.

Kristeller & Zucker and Lionel P. Kristeller, all of Newark, for respondent.

BODINE, Justice.

The appeal is from a judgment of nonsuit entered on the first and second counts of the complaint and a directed verdict of 6 cents in appellant's favor on the third count. Several phases of the case have been before the courts in Barnes v. P. & D. Mfg. Co., 117 N.J.L. 156, 187 A. 186, and P. & D. Mfg. Co; v. Barnes, 120 N.J.L. 229, 199 A. 9.

Appellant in this case sought compensation for labor and the use of his alleged inventions in the manufacture of automotive accessories. The trial court granted a nonsuit on the first and second counts, holding that the proofs showed that the contract for services, the basis of those counts, was oral, and could not be performed within one year from the making thereof, and was consequently unenforceable by virtue of the statute of frauds which had been specially pleaded. He also directed a verdict on the third count for 6 cents damages because of lack of proof of anything greater.

The defendant was engaged in the manufacture and sale of automotive accessories in Long Island City. The appellant during the summer of 1930 showed the defendant an invention he had made. The nature of his future connection with the defendant was discussed and he was requested to submit a proposed written agreement embodying the terms thereof. Such a contract was prepared by his patent attorney, and submitted to the defendant on or about August 1, 1930. However, it was never executed by either party. An attempt was made to prove a parol agreement of like terms; such agreement providing for services to be rendered over a period of five years would offend the statute of frauds.

"An Act for the prevention of frauds and perjuries" provides as follows: "No action shall be brought (1) * * *; or (2) * * *; or (3) * * *; or (4) * * *; or (5) upon any agreement, that it is not to be performed within one year from the making thereof; unless the agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized." R.S. 25:1-5 N.J.S.A. 25:1-5.

Justice Depue said in McElroy v. Ludlum, 32 N.J.Eq. 828: "But if the evidence established the agreement set out in the bill, the complainant would, nevertheless, be debarred of the relief prayed for. The suit is in substance an action to enforce a legal demand. It must, therefore, be decided upon the legal principles by which the right of a party to recover compensation for services rendered, under a contract invalid by the statute of frauds, is determined. Performance of a contract invalid by the statute, will not validate the contract so as to enable a party to enforce it by an action upon the contract. Unless in cases specially provided for in the statute, part performance will not validate the contract at law. The dictum that part performance will make valid a contract invalid by the statute of frauds, is exclusively the creature of equity, and applies only to contracts relating to lands, and does not extend to contracts relating to other matters."

When this case was previously in this court on an appeal from the judgment striking the complaint (Barnes v. P. & D. Mfg. Co., Inc., 117 N.J.L. 156, 187 A. 186, 189), all that was decided was that the case was not then ripe for a decision dismissing appellant's cause of action. Mr. Justice Perskie said, "The determination of these questions [statute of frauds, estoppel, termination, etc.] must await their timely presentment."

The case has now been tried and the motion to nonsuit, as to the first and second counts, based upon the fact that the evidence before the trial court undeniably disclosed that the contract, upon which the counts were based, was invalid under the statute of frauds and was consequently unenforceable, was properly decided. The learned trial judge said: "The contract upon which the action is based is undeniably an oral one. It is for services not to be performed within one year, and as such it was void and unenforcible under section 5 of the Statute of Frauds. Also see McElroy v. Ludlum, 32 N.J.Eq. 828; Dolan v. Miller, 179 A. 619, 13 N.J.Misc.R. 543. By the very terms alleged, it was one which was not intended to be, and could not be performed or completed within one year. In the case of Reynier v. Associated Dyeing & Printing Company, 116 N.J.L. 481, at page 484, 184 A. 780, 104 A.L.R. 1002, Chief Justice Brogan, speaking for the Court said: 'Oral agreements that cannot be performed within a year, are those that are invalid under the statute.' Termination, through bankruptcy or breach did not mean completion or performance. Neither does the alleged part performance of the contract on the part of the appellant make the contract enforcible as a contract. The doctrine of part performance, saving an agreement from the Statute of Frauds, belongs to the court of equity, particularly in suits for specific performance. Alleged performance of the contract by the appellant, then, does not entitle him to recover according to the terms of the contract. The contract, as such, is not rendered enforcible by part performance. * * *"

In Marble v. Town of Clinton, Mass., 9 N.E.2d 522, 524, 111 A.L.R. 1101, the Supreme Judicial Court of Massachusetts held: "Contracts for service for more than a year, subject to termination within a year at the election of a party upon the happening of some event, or even at the mere will of a party, have generally been held...