Bogash v. Studios, Inc.
| Decision Date | 23 May 1939 |
| Citation | 21 N.E.2d 235,303 Mass. 207 |
| Parties | BRUNO BOGASH v. STUDIOS, INC. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
April 5, 1939.
Present: FIELD, C.
J., DONAHUE, DOLAN COX, & RONAN, JJ.
Frauds, Statute of. Time. Contract, of employment. Evidence, Presumptions and burden of proof.
After the defendant in an action of contract has pleaded the statute of frauds the plaintiff has the burden of proving a sufficient memorandum or a contract not within the statute. A finding that an oral contract of employment "for one year only" was one
"to be performed within one year from the making thereof" within the statute of frauds, G.L. (Ter. Ed.) c. 259, Section 1, Fifth, would not have been warranted by evidence that it was made on a Saturday for employment "to begin" the following Monday; the intervening Sunday was not to be excluded in the computation of the statutory year.
CONTRACT. Writ in the Superior Court dated October 31, 1935. The action was tried before Walsh, J.
M. M. Isen, (L.
I. Shapiro with him,) for the plaintiff.
C. W. Spencer, for the defendant.
This action of contract to recover damages for breach of an oral contract of employment was tried to a jury. To the direction of a verdict for the defendant the plaintiff excepted.
There was no error. The defendant pleaded the statute of frauds, that the contract as set forth in the plaintiff's declaration "was an agreement which was not to be performed within one year from the making thereof, and said contract was not in writing, and no memorandum or note thereof was made in writing and signed by the party to be charged therewith or by some person thereto by it lawfully authorized, such as is required by G.L. c. 259." Where, as here, the statute of frauds is pleaded, the burden of proving compliance therewith or of proving a contract to which the statute did not apply rests upon the plaintiff. Beaver v Raytheon Manuf. Co. 299 Mass. 218, 219. The evidence did not warrant a finding that this burden was sustained.
There is no evidence -- nor is it contended -- that the agreement relied on was in writing or that there was any memorandum or note thereof in writing. See G.L. [Ter. Ed.] c. 259, Section 1 Fifth. According to the plaintiff's uncontradicted testimony the agreement was "oral."
According to this testimony, as set out in the bill of exceptions, "on Saturday, June 22, 1935 . . . he [the plaintiff] entered into an oral contract of employment for one year only, at $40.00 per week, to begin Monday, June 24, 1935." There is no evidence tending to show any contract made after Saturday, June 22, 1935. Since there was no conflicting evidence as to the terms of the contract, the construction of those terms, though oral and not written, was for the court. Globe Works v. Wright, 106 Mass. 207, 216. Freeman v. Hedrington, 204 Mass. 238 , 240.
We interpret the terms of the contract testified to as meaning that the employment of the plaintiff was to be for one year beginning with and including Monday, June 24, 1935, and not for one year from the day (Saturday, June 22, 1935) on which according to the testimony, the contract was entered into. This year of employment, therefore, would not end until the close of Tuesday, June 23, 1936, and the agreement for such employment could not be fully performed until the close of that day. On the other hand, in the computation of "one year from the making" of the agreement (June 22, 1935), within the meaning of the statute of frauds, the day on which it was made would be excluded and the year would end "at the close of the first...
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