Boone v. Coe

• Court: Kentucky Court of Appeals
• Writing for the Court: CLAY, C.
• Citation: Boone v. Coe, 153 Ky. 233, 154 S.W. 900 (Ky. Ct. App. 1913)
• Decision Date: 28 March 1913
• Parties: BOONE et al. v. COE.

154 S.W. 900

153 Ky. 233

BOONE et al. v. COE.

Court of Appeals of Kentucky.

March 28, 1913

Appeal from Circuit Court, Monroe County.

Action by W. H. Boone and another against J. F. Coe. From a judgment sustaining a demurrer to the petition and dismissing the petition, plaintiffs appeal. Affirmed.

Allen Sandidge, of Glasgow, Sherman Spear, of Tompkinsville, and Porter & Sandidge, of Glasgow, for appellants.

Baird &amp Richardson, of Glasgow, for appellee.

CLAY C.

Plaintiffs W. H. Boone and J. T. Coe, brought this action against defendant, J. F. Coe, to recover certain damages, alleged to have resulted from defendant's breach of a parol contract of lease for one year to commence at a future date. It appears from the petition that the defendant was the owner of a large and valuable farm in Ford county, Tex. Plaintiffs were farmers, and were living with their families in Monroe county, Ky. In the fall of 1909 defendant made a verbal contract with plaintiffs, whereby he rented to them his farm in Texas for a period of 12 months, to commence from the date of plaintiffs' arrival at defendant's farm. Defendant agreed that if plaintiffs would leave their said homes and businesses in Kentucky, and with their families, horses, and wagons, move to defendant's farm in Texas, and take charge of, manage, and cultivate same in wheat, corn, and cotton for the 12 months next following plaintiffs' arrival at said farm, the defendant would have a dwelling completed on said farm and ready for occupancy upon their arrival, which dwelling plaintiffs would occupy as a residence during the period of said tenancy. Defendant also agreed that he would furnish necessary material at a convenient place on said farm out of which to erect a good and commodious stock and grain barn, to be used by plaintiffs. The petition further alleges that plaintiffs were to cultivate certain portions of the farm, and were to receive certain portions of the crops raised, and that plaintiffs, in conformity with their said agreement, did move from Kentucky to the farm in Texas, and carried with them their families, wagons, horses, and camping outfit, and in going to Texas they traveled for a period of 55 days. It is also charged that defendant broke his contract, in that he failed to have ready and completed on the farm a dwelling house in which plaintiffs and their families could move, and also failed to furnish the necessary material for the erection of a suitable barn; that on December 6th defendant refused to permit plaintiffs to occupy the house and premises, and failed and refused to permit them to cultivate the land or any part thereof; that on the ___ day of December, 1909, they started for their home in Kentucky, and arrived there after traveling for a period of 4 days. It is charged that plaintiffs spent in going to Texas, in cash, the sum of $150; that the loss of time to plaintiffs and their teams in making the trip to Texas was reasonably worth $8 a day for a period of 55 days or the sum of $440; that the loss of time to them and their teams during the period they remained in Texas was $8 a day for 22 days, or $176; that they paid out in actual cash for transportation for themselves, families, and teams from Texas to Kentucky the sum of $211.80; that the loss of time to them and their teams in making the last-named trip was reasonably worth the sum of $100; that in abandoning and giving up their homes and businesses in Kentucky they had been damaged in the sum of $150, making a total damage of $1,387.80, for which judgment was asked. Defendant's demurrer to the petition was sustained and the petition dismissed. Plaintiffs appeal.

Under the rule in force in this state the statute of frauds relates to the remedy or mode of procedure, and not to the validity of the contract. Though the land is located in Texas, the parol contract of lease was made here, and here it is sought to enforce it. If unenforceable under our statute, it cannot be enforced here. Kleeman & Co. v. Collins, 9 Bush, 460. If the statute requires the contract to be in writing, and the petition does not allege it to be in writing, defense may be presented by demurrer. Bull v. McCrea, 8 B. Mon. 423; Smith v. Fah, 15 B. Mon. 446; Smith v. Theobald, 86 Ky. 141, 5 S.W. 394, 9 Ky. Law Rep. 449.

The statute of frauds (section 470, subsecs. 6 and 7, Kentucky Statutes) provides as follows: "No action shall be brought to charge any person: 6. Upon any contract for the sale of real estate, or any lease thereof, for longer term than one year; nor 7. Upon any agreement which is not to be performed within one year from the making thereof, unless the promise, contract, agreement, representation, assurance, or ratification, or some memorandum or note thereof, be in writing, and signed by the party to be charged therewith, or by his authorized agent; but the consideration need not be expressed in the writing; it may be proved when necessary, or disproved by parol or other evidence." A parol lease of land for one year, to commence at a future date, is within the statute. Greenwood v. Strother, 91 Ky. 482, 16 S.W. 138, 13 Ky. Law Rep. 33.

The question sharply presented is: May plaintiffs recover for expenses incurred and time lost on the faith of a contract that is unenforceable under the statute of frauds?

In the case of Hurley v. Woodsides, 54 S.W. 8, 21 Ky. Law Rep. 1073, Woodsides made a parol lease with Hurley for 25 acres of timber land for a period of five years. Under the contract Hurley was to clear five acres of the land in the winter of 1897 and 1898, ten acres in the winter of 1898 and 1899, and ten acres in the winter of 1899 and 1900, and was to have free use of the land so cleared up for three years thereafter. Woodsides agreed to erect a dwelling house, smoke house, kitchen, and stable on the leased premises for Hurley's occupancy, and was to furnish a team of oxen with which to break up the land as soon as it was cleared. He was also to remove the logs lying upon the land at the time of the lease, and to erect a tobacco barn for Hurley's use. Moreover, it was a part of the agreement that the contract was to be put in writing. Relying upon Woodsides' promise to do so, Hurley moved his personal effects into an old house located upon the land, which he was to occupy until the new house was finished, and gave up the premises previously occupied by him. After such removal Woodsides denied that he had agreed to furnish the cattle to break up the land or to remove the logs or to erect a tobacco barn, and refused to sign a contract embracing these stipulations. This refusal necessitated Hurley's abandonment of the leased premises. Alleging that as a result of Woodsides' failure to carry out the contract he had been damaged in the sum of $100, the cost of removing his effects, $50 for time lost in hunting up another place, $200 in prospective profits which he would have realized by reason of his bargain, and $300 by reason of having been induced to surrender the premises formerly occupied by him, Hurley brought suit against Woodsides to recover the aforesaid item of damages, aggregating the sum of $650. The trial court sustained a demurrer to the petition, and the petition was dismissed. On appeal here the judgment was affirmed. After setting out the statute of frauds, the court said: "Under this provision of the statute the alleged verbal contract was not binding or enforceable upon the parties thereto, for the reason that it was a contract for the lease of real estate for a longer term than one year from the making thereof; and, as the contract itself was not enforceable between the parties, no action for damages for refusing to execute it or to reduce it to writing can be maintained, as 'it would leave but little, if anything, of the statute of frauds to hold that a party might be mulcted in damages for refusing to execute in writing a verbal agreement which, unless in writing, is invalid under the statute of frauds.' Chase v. Fitz, 132 Mass. 361; Lawrence v. Chase, 54 Me. 196."

In the case of Brumley et al. v. Broyles, 58 S.W. 984, 22 Ky. Law Rep. 830, it was held that a tenant with a parol agreement for a lease for another year, which was within the statute of frauds, could not recover as damages for breach of the contract the loss sustained by him in making preparations for raising a crop.

In the case of King v. Cheatham, 104 S.W. 751, 31 Ky. Law Rep. 1176, King sued upon a writing signed by himself alone in which he bound himself to buy from Cheatham certain trees standing on her land, to be severed in the future. It appears that he cut some 263 trees from the land before he was ousted. He asked damages for his labor and profit. There was a judgment below for defendant. On appeal the judgment was affirmed. In discussing the validity of the contract and the right of plaintiff to recover damages thereon, the court said: "The statute merely withholds a right of action upon them as against ...