Bersch v. Dittrick

• Decision Date: 31 October 1853
• Citation: 19 Mo. 129
• Parties: BERSCH, Respondent, v. DITTRICK et al., Appellants.
• Court: Missouri Supreme Court

19 Mo. 129

BERSCH, Respondent,

v.DITTRICK et al., Appellants.

Supreme Court of Missouri.

October Term, 1853.

1. The plaintiff sued for services from January 17 to June 15, 1853. The defendants answered that on or about January 17, 1853, the plaintiff contracted to serve them for one year from January 17, and that he quit without cause before the expiration of the year. This answer was stricken out for the reason that, consistently with its allegations, the contract might have been made prior to January 17, for a year's service to commence at a future day, which would be within the statute of frauds. Held, it was error to strike out the answer, that section of the code being applicable, which says that the allegations of pleadings shall be liberally construed, with a view to substantial justice.

Appeal from St. Louis Law Commissioner's Court.

Cline and Thompson, for appellant.

I. The court erred in sustaining the motion of the plaintiff for judgment notwithstanding the answer, because there is a specific denial of the allegations contained in the plaintiff's petition.

The answer sets up a consistent, substantial defence, independent of the denial, and does not admit the monthly value of any services whatever.

The answer, for all purposes for which we have to do with it, must be taken as true; it sets up the fact that the plaintiff was retained as clerk and servant by the defendants for the space of one whole year from January 17, 1853. This contract, as set up in defendant's answer, is clearly not barred by the statute of frauds. Benton v. Colliger, 4 Bingh. 309. 2 Car. & P. 607. Sykes v. Dixon, 9 Adol. & Ellis, 693. Chitty on Cont. 68.

This contract, as set up in defendant's answer, shows a general hiring to commence in the present, and to terminate in one year; this we hold to be binding, though not in writing. Authorities above cited.

H. N. Hart, for respondent.

I. Does the answer in this case set up a contract made on a day certain, and to complete and terminate within one year from the day of the making of the said agreement? II. Does the answer deny that the respondent did work and labor for appellants, as stated in the petition, and at the price and sum per month, as stated? 1. The answer is too vague and uncertain as to the allegation setting up a parol contract, to bring the same out of the statute of frauds. The language of the statute is, “or upon any agreement that is not to be performed within one year from the making thereof.” 5 sec. Frauds and Perjuries, R. C. 529. 2. The answer does not, with any certainty, set up a contract made with respondent on a day certain, and that one year from the 17th of January, 1853, was one year from the day of the making of the verbal contract. 3. A parol agreement for a year made before the commencement of the year, is void for not being in writing. 5 sec. of stat. 1845, Frauds and Perjuries, 529. 11 Verm. 428. 3 Hill, 128. 16 Conn. 246. 1 Denio, 602. 1 ib. 606.

GAMBLE, Judge, delivered the opinion of the court.

1. The plaintiff sued for services rendered to the defendants from the 17th January to the 15th June, 1853, at $66.66 2/3 per...