Bethel v. A. Booth & Co.

• Decision Date: 18 March 1903
• Citation: 115 Ky. 145,72 S.W. 803
• Parties: BETHEL v. A. BOOTH & CO.
• Court: Kentucky Court of Appeals

72 S.W. 803

115 Ky. 145

BETHEL v. A. BOOTH & CO.

Court of Appeals of Kentucky.

March 18, 1903

Appeal from Circuit Court, Kenton County.

"To be officially reported."

Action by William E. Bethel against A. Booth & Co. Judgment for defendant, and plaintiff appeals. Reversed.

Myers &amp Howard, for appellant.

W. W Symmes, for appellee.

PAYNTER J.

It is averted in the petition that on the -- day of July, 1899, and prior thereto, the plaintiff was the owner of and engaged in keeping a fish and oyster store in the city of Covington, and had been so engaged for about 25 years; that it was a profitable business; that on the -- day of July of that year he entered into a verbal agreement with the appellee, A Booth & Co., a corporation, by the terms of which he, in consideration of employment to conduct a store of like kind for the defendant in the city of Covington for a period of 10 years, sold, assigned, and transferred to it, for the sum of $600, the assets of his business, which were of the actual value of $1,200; that pursuant to that contract he performed the services for appellee required by the contract for the period of 12 months, when it, without fault upon his part discharged him and refused to carry out the contract. For this breach of the contract he avers that he was damaged in the sum of $1,990. The defendant denies the contract, and seeks to avoid it because it is a verbal contract not to be performed within one year, and for that reason no action can be maintained upon it. The evidence introduced by the appellant conduces to sustain the averments of the petition, and that the appellee was to pay him $25 per week for conducting its business for a period of 10 years, and that the assets of his business which he sold to the appellee were actually worth $1,200, and that the good will of the business was very valuable. The court below, being of the opinion that the action could not be maintained upon a verbal contract, gave a peremptory instruction to find for the appellee. To review that action of the court this appeal is here.

If this action was one purely upon a contract by which the appellee agreed to employ the appellant for a period of ten years at a stated salary, then, under the adjudications of this court no action could be maintained upon it. This was decided in Smith v. Theobald, 86 Ky. 141, 5 S.W. 394, wherein the court said: "A verbal contract for a year's services to be performed at some future time is within the statute of frauds, because it cannot be wholly performed within a year from the making day." There are other opinions of this court of like effect. This court has held that where one part of the contract was to be, and was actually, performed within a year, an action could be maintained upon it. In Dent v. Head, 90 Ky. 261, 13 S.W. 1075, 29 Am.St.Rep. 369, the court said: "It now seems to us the statute was intended and does properly apply only to an agreement that is not to be performed by either party within a year, but not to one which is to be or has been performed by one or either of them within such period, and that construction has been adopted elsewhere. A. T. & S. F. R. Co. v. English (Kan.) 16 P. 82; McClellan v. Sanford, 26 Wis. 595; Curtis v. Sage, 35 Ill. 22; Berry v. Doremus, 30 N. J. Law, 403; Haugh v. Blythe's Ex'rs, 20 Ind. 24; Smalley v. Greene, 52 Iowa 241, 3 N.W. 78, 35 Am.Rep. 267; Blanding v. Sargent, 33 N.H. 239, 66 Am.Dec. 720. For if the practical effect and operation of the statute is, as has been uniformly held by this court, in every case where one party has performed an agreement within a year, to hold the other party liable on such agreement, although he is not to perform within a year, such should be construed and held to be the meaning and import of the language used. In fact, the statute properly applies to agreements that are wholly executory; and one which has been performed by one of the parties within a year is to that extent executed, and cannot with propriety be called...