Cowles v. Warner

• Decision Date: 23 March 1876
• Parties: Walter C. Cowles v. William P. Warner
• Court: Minnesota Supreme Court

22 Minn. 449

Walter C. Cowles v. William P. Warner

Supreme Court of Minnesota

March 23, 1876

The plaintiff brought this action in the district court for Hennepin county, to recover $ 1,425.00 damages for the breach of an alleged contract, by which, in consideration that plaintiff would open at Minneapolis, for defendant, a branch of Tappan, McKillop & Co.'s Commercial Agency, and canvass and solicit subscriptions therefor, the defendant agreed to furnish and provide, at the joint cost of the parties, all books and stationery necessary to open and maintain such office; the subscriptions to be obtained, and books and stationery furnished, and the office opened, on July 1, 1874. The contract, as alleged, further provided that plaintiff should have the entire annual profits of the business, subject to an annual payment of $ 150.00 to defendant, until these should exceed $ 2,500.00 per annum after which time the excess over $ 2,500.00 should be divided equally between the parties. The defence was a denial of each allegation of the complaint. At the trial in the district court, before Vanderburgh, J., the plaintiff had a verdict for $ 583.00; a new trial was refused, and defendant appealed.

Order reversed and new trial granted.

W. P Warner, for appellant.

Atwater & Babcock, for respondent.

OPINION

Cornell J.

It is conceded that the contract sued on was a parol contract, no part of which was reduced to writing, or signed by either party. It follows that if by its terms it was not to be performed within one year from the making thereof, it was within the statute of frauds, and no action can be maintained upon it to recover damages for a breach of any of its obligations. Gen. St. ch. 41, § 6. In other words, if the contract was an entirety, and was necessarily to continue in force for a period of time extending beyond the prescribed year, so that its obligations could not be performed within that year, then it was void under the statute. If, however, beginning within the year, it was to continue in force for an indefinite period of time, with the right to either party to terminate it at any moment before the expiration of such year, and its obligations were of such a character that they could all be performed within that period, without contravening any of its terms, then it was without the statute, and was a valid and binding contract.

No question seems to have been made on the trial but that the establishment and maintenance of the commercial agency mentioned in the complaint, whatever it...