Brown v. Oneida Knitting Mills, Inc.

• Decision Date: 15 February 1938
• Citation: 226 Wis. 662,277 N.W. 653
• Parties: BROWN v. ONEIDA KNITTING MILLS, Inc.
• Court: Wisconsin Supreme Court

226 Wis. 662

277 N.W. 653

BROWN

v.ONEIDA KNITTING MILLS, Inc.

Supreme Court of Wisconsin.

Feb. 15, 1938.

Appeal from a judgment of the Circuit Court for Brown County; Henry Graass, Judge.

Action by Otis E. Brown, against the Oneida Knitting Mills, Incorporated, to recover an alleged loss of salary. Judgment for plaintiff for $166.02, and plaintiff appeals, defendant moving for a review of the judgment.-[By Editorial Staff.]

Affirmed.

Action commenced November 28, 1936, by appellant to recover alleged loss of salary for the period from April 2 to November 21, 1936. The appellant claims that on or about the 21st day of November 1934, he was employed by the respondent company for the period of one year, at a yearly salary of $3,000, payable in monthly installments of $250; that at the expiration of said one year period, the contract of employment was renewed by agreement of the parties; that under the renewal agreement, he continued to render services until April 2, 1936, on which date he was discharged without cause. It is alleged that by reason of said wrongful discharge, he has sustained a loss of salary in the sum of $1,500. Case was tried to the court and jury. The jury found that the original agreement of hire was for a year and that the date of discharge was April 2, 1936. The respondent claims that the hiring was for an indefinite period at $250 per month and that employment on a monthly basis was terminated on March 14, 1936, on which date it was agreed that appellant was to work on a commission basis and that he was so employed for the period between March 14, and April 2, 1936. The respondent claims that the commission agreement was terminated March 31, 1936. The jury found that the appellant did not accept the new contract to work on a commission basis. It is conceded that appellant was paid the sum of $250 per month until March 14, 1936. Respondent moved for a nonsuit at the close of the plaintiff's case; also moved for a directed verdict at the conclusion of the evidence.

On motions after verdict, the trial court held that the agreement of hire was void under section 241.02, Statutes, it not being in writing and not to be performed within a year from the making thereof. The court further held that since the original agreement of hire was void, the fact that appellant continued in the respondent's employ over the first year did not operate to renew the employment for a further period of one year. The court gave plaintiff judgment on the basis of his salary of $250 per month for the period from March 14 to April 2, 1936, with interest and costs in the sum of $166.02. The plaintiff appeals from said judgment. The defendant has moved for a review of the judgment as entered against it. Further material facts will be stated in the opinion.Alk, Kresky & Cohen, of Green Bay, for appellant.

Smith & Smith, of De Pere, and Robert A. Kaftan, of Green Bay, for respondent.

MARTIN, Justice.

There is little, if any, dispute between the parties as to the main facts in this case. The appellant testified that his services were to commence in the future. According to his testimony, the contract was finally consummated on Friday, November 16, 1934. Appellant was then employed by the Cooper Company at Kenosha, Wis. It was agreed that he was to sever his connection agreeable to his then employer and then report to respondent company for work. Appellant's family lived in the city of De Pere, where appellant spent his week ends while employed at Kenosha. The respondent's manufacturing plant is located in the city of De Pere. It appears that appellant went to De Pere on Saturday, November 17th, and reported to respondent for work on the following Wednesday, November 21st.

[1] The contract being oral, it clearly falls within the condemnation of section 241.02, Statutes, which declares every agreement that by its terms is not to be performed within one year from the making thereof, void, unless some note or memorandum thereof expressing consideration be in writing and subscribed by the parties to be charged therewith. Estate of Hippe, 200 Wis. 373, at page 376, 228 N. W. 522, and cases cited. The appellant contends that the agreement for hire between the plaintiff and defendant by its terms could have been performed within a year. In his brief, appellant states: “Had the contract definitely, by its terms, postponed the commencement of performance to a future day, it would have been invalid; but where the performance conceivably could have commenced on the same day, it is valid.”

It is obvious that the parties having consummated the contract in a long distance telephone conversation, the appellant being then employed in Kenosha, neither party then knowing when the appellant could be relieved of his duties under the terms of his employment by the Cooper Company, the contract in question did by its terms postpone the commencement of performance to a future date. It was clearly so understood.

[2] Appellant's next contention is that if he could not have commenced performance of his contract on the day it was entered into, he could have done so on the following day, and therefore the contract is not within the statute of frauds, because section 370.01 (24) provides: “Time, how computed. The time within which an act is to be done as provided in any statute, when expressed in days, shall be computed by excluding the first day and including the last, except that if the last day be Sunday or a legal holiday the act may be done on the next secular day; and when any such time is expressed in hours the whole of Sunday and of any legal holiday, from midnight to midnight, shall be excluded.”

[3][4] This statute has no application. The statute of frauds, section 241.02 (1), declares void “every agreement that by its terms is not to be performed within one year from the making thereof” unless such agreement or some note or memorandum thereof, expressing the consideration be in writing and subscribed by the parties charged therewith. Making a contract is an event.

“The rule is well established, on an issue of limitation, where the time is to be computed from a certain date, that in the computation the day of the date is to be excluded, and, where the computation is from a certain event the date of that event must be included.”Siebert v. Jacob Dudenhoefer Co., 178 Wis. 191, at page 194, 188 N.W. 610, 611;De Forest Lumber Co. v. Potter, 213 Wis. 288, 251 N. W. 442;North Shore Material Co. v. Frank W. Blodgett, Inc., et al., 213 Wis. 70, 250 N.W. 841.

[5] Any excess of the year period from the making of the contract will render the agreement void. Chase v. Hinkley, 126 Wis. 75, 77, 105 N.W. 230, 2 L. R.A.,N.S., 738, 110 Am.St.Rep. 896, 5 Ann.Cas. 328. Upon the admitted facts, the contract of November 16, 1934, was void.

While it is alleged that at the expiration of one year from the date of the original contract, same was renewed by agreement of the parties and plaintiff continued to render services upon the same terms, no claim is made that the parties made any agreement for any definite period. In this connection, we quote from appellant's brief: “We submit that on November 21, 1935, the contract between plaintiff and defe...