Chase v. Hinkley

• Decision Date: 24 October 1905
• Citation: 126 Wis. 75,105 N.W. 230
• Parties: CHASE v. HINKLEY.
• Court: Wisconsin Supreme Court

126 Wis. 75

105 N.W. 230

CHASE

v.HINKLEY.

Supreme Court of Wisconsin.

Oct. 24, 1905.

Syllabus by the Judge.

By section 2307, subd. 1, Rev. St. 1898, providing that “every agreement” shall be void “that by its terms is not to be performed within one year from the making thereof,” any excess, however short, of one year from the date of a verbal agreement till that of the agreed full performance will defeat it.

That the period covered by the agreement extends only one year from the time for commencement of performance does not take it out of the statute, as the statutory period commences with the date of the agreement.

That a contract for personal services is terminable by death of the servant does not take it out of the statute under the rule that only those contracts are not valid which cannot by their terms be performed within a year.

When the finding of the trial court upon a question of fact is challenged upon appeal, all reasonable presumptions are to be indulged in in favor thereof, and it cannot be disturbed unless in the light of such rule it is so clearly contrary to the preponderance of the evidence as to produce conviction in the minds of the reviewers to a reasonable certainty that it is wrong.

Appeal from Superior Court, Milwaukee County; J. C. Ludwig, Judge.

Action by Clark Chase against George M. Hinkley. Judgment for plaintiff. Defendant appeals. Affirmed.

Appeal from the superior court for Milwaukee county. Action to recover on contract. The claim of the plaintiff was that the defendant owed him $39.00, for work and labor. The claim of the defendant was that on the first day of November, 1903, he employed plaintiff to work for him for the period of one year from that date at a salary of $450; that plaintiff commenced work accordingly and September 2nd, 1904, without cause, abandoned defendant's service and refused to complete the contract. Defendant further answered that after such abandonment plaintiff commenced an action against the defendant in a court of competent jurisdiction, specifying the same, to enforce the claim made in this action, and that judgment was rendered in favor of the latter. There was evidence tending to show that a contract was entered into between plaintiff and defendant in the last part of October. 1903, in which the former promised, for wages agreed upon, to work for the latter for the period of one year, and to commence on the following Monday, and that he did so commence. There was evidence further tending to show that plaintiff prior to this action commenced one against defendant to enforce the claim here involved, together with others aggregating $5.50, but before the trial the one sued on here was withdrawn from the litigation. The trial court found that between the first day of August, 1904, and the second day of September, 1904, plaintiff performed work and labor for the defendant of the reasonable value of $39.00, the amount claimed in the complaint; that the services were not rendered pursuant to any valid contract whereby plaintiff agreed to serve defendant for a year from the first day of November, 1903; that in the prior action by plaintiff, in which judgment was obtained in favor of defendant, the claim here involved was not presented. Judgment was accordingly ordered in plaintiff's favor for $39.00, and costs, and was entered accordingly.Edgar L. Wood, for appellant.

William Kaumheimer, for respondent.

MARSHALL, J. (after stating the facts).

The decision, that the work performed by respondent was not done under any valid contract for a continuous year's service commencing on the first day of November, 1903, in effect, found against appellant on the controversy as to whether the agreement was “by its terms not to be performed within one year from the making thereof.” That has sufficient support in the evidence. Respondent testified quite positively that the agreement was made October 29th, 1903, for services to be rendered for the period of one year commencing on the first day of November following. The testimony of appellant in respect to the matter, by itself, left the date of the agreement in considerable doubt. In that situation the trial court concluded, as well it might have, that the contract was by its terms not to be performed till the expiration of one year and two days from its date. The excess of two days was just as efficient as a longer period to render the agreement void under subdivision 1, § 2307, Rev. St. 1898, which provides that “every agreement” shall be void “that by its terms is not to be performed within one year from the making thereof.” Any excess of the year period, however short, is sufficient to satisfy the statute. That was stated very forcibly by Lord Ellenborough in Bracegirdle v. Heald, 1 B. & Ald. 722, the reason therefor being expressed in these words:

“If we were to hold that a case which extended one minute beyond the time pointed out by the statute, did not fall within its prohibition, I do not see where we should stop; for in point of reason, an excess of twenty years will equally not be within the act. Such difficulties rather turn upon the policy, than upon the construction of the statute.”

The fact that the period of service agreed upon was to extend for one year from the time performance commenced does not take the case out of the statute, for where performance is to commence in the future, for the purposes of the statute, the period to be considered is that beginning with the date of the agreement. Sharp v. Rhiel, 55 Mo. 97;Cohen v. Stein, 61 Wis. 508, 21 N. W. 514;Draheim v. Evison, 112 Wis. 27, 87 N. W. 795;Sutcliffe v. Atlantic Mills, 13 R. I. 480, 43 Am. Rep. 39;Kleeman v. Collins, 9 Bush (Ky.) 460; Little v. Wilson, 4 E. D. Smith (N. Y.) 422; Banks v. Crossland, L. R. 10 Q. B. 97; Scoggin v. Blackwell, 36 Ala. 351;Kelly v. Terrell, 26 Ga. 551;Wilson v. Martin, 1 Denio, 602;Snelling v. Huntingfield, 1 C. M. & R. 20; Cawthorne v. Cordrey, 13 C. B. (N. S.) 406; Billington v. Cahill, 51 Hun, 132, 4 N. Y. Supp. 660.

The cases cited, in the main, involved facts substantially identical with those before us. In Scoggin v. Blackwell, supra, it was held that a contract made on one day to work for a year from the following day was within the statute. In Kelly v. Terrell, supra, a...