Diamond v. Jacquith

• Citation: 14 Ariz. 119,125 P. 712
• Decision Date: 29 June 1912
• Docket Number: Civil 1223
• Parties: IKE DIAMOND, Doing Business Under the Firm Name and Style of I. DIAMOND & BROTHER, Appellant, v. WILLIAM JACQUITH, Appellee
• Court: Supreme Court of Arizona

125 P. 712

14 Ariz. 119

IKE DIAMOND, Doing Business Under the Firm Name and Style of I. DIAMOND & BROTHER, Appellant, v. WILLIAM JACQUITH, Appellee

Civil No. 1223

Supreme Court of Arizona

June 29, 1912

APPEAL from a judgment of the District Court of the Third Judicial District, in and for the County of Maricopa. Edward Kent Judge. Affirmed.

STATEMENT OF FACTS BY THE COURT.

The appellee brought his action in the lower court against the appellant, alleging that, in the month of June, 1909, he entered into a verbal contract with the defendant to act as manager of defendant's mercantile business and general merchandising store in the city of Phoenix for the periof between the fifteenth day of October, 1909, and the 15th of October, 1910; the appellant (defendant below) agreeing to pay as compensation $150 per month and two per cent on all gross sales made in said store under appellee's management over the sum of $144,000. Appellee further alleged that the gross sales of said business amounted to $273,107.79, and that his percentage at two per cent on the gross sales, over the sum of $144,000, was the sum of $2,582.14. Appellee alleged the payment of the salary of $150 a month, or $1,800 on account, and alleged that there was still due, under his contract, $2,582.14. He alleged that he performed each and every service required by him to be performed under the provisions of the contract. The appellant in his answer denied that he ever agreed to pay any percentage, and alleged that, prior to October 18, 1909, in the city of New York, he hired appellee under a verbal contract to work from month to month as manager of the dry-goods and notions department of his store at the agreed price of $150 a month, and for no other compensation whatsoever. Appellant alleged payment in full of the stipulated salary. The defendant, by way of demurrer and answer, set up the provisions of the statute of frauds requiring contracts and agreements not to be performed within one year to be in writing. It was stipulated in the trial of the case that the gross sales of appellant's business from October 15, 1909, to October 15, 1910, amounted to $273,107.79. Appellee testified: "There were no percentages to be paid until the expiration of the year. If I didn't stay my year out, I didn't get any percentage." The evidence shows that at the time the contract was entered into between the parties appellee was in Phoenix; that he was making arrangements to move himself and family to Connecticut with a view of entering business there that he did in fact go to Connecticut, after the contract was concluded, on a visit, and remained there a couple of months; that he met appellant in New York and had several conversations with him concerning his employment, the details of which were discussed between them; that with his family he returned to Phoenix and entered upon the discharge ofhis labors for the appellant, continuing to work for him the entire year. The appellee also testified that he had received from the appellant $450 in cash and $107.10 in goods, amounting in all in cash and goods to $557.10. The cause was tried to a jury, and the jury returned a verdict in favor of appellee for the sum of $2,582.14, less the amount of the counterclaim for cash and goods paid and advanced to appellee by appellant, amounting to $557.10. The judgment followed the verdict and was for $2,025 and legal interest, and costs in the sum of $105.30. From this judgment and the order overruling motion for a new trial an appeal is taken.

Messrs. Kibbey, Bennett, and Mr. Barnett E. Marks, for Appellant.

Mr. G. P. Bullard and Messrs. Alexander & Christy, for Appellee.

OPINION

ROSS, J.

The appellant relies upon paragraph 2696, Revised Statutes of Arizona (Civil Code) 1901, for a reversal of the judgment of the lower court. That paragraph is as follows: "(Section 1.) No action shall be brought in any of the courts in any of the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the parties to be charged therewith, or by some person by him thereunto lawfully authorized: . . . 5. Upon any agreement which is not to be performed within the space of one year from the making thereof."

Under similar statutes, it has been held that verbal contracts not to be performed within a year are not void, but voidable. The language forbids the bringing of an action, but does not declare the contract void. 20 Cyc. 279A, 2.

Clearly the contract here sued on falls within the statute of frauds (20 Cyc. 198B), and is not enforceable, unless the acts of the parties to it take it out of the statute. The plaintiff (appellee) alleges that he was to receive, under his agreement, "as compensation, . . . the sum of $150 per month and two per cent on all gross sales made in said store and business under the management of said plaintiff over and above the sum of $144,000." This was the contract sued on. The percentage was as much a part of his salary as was the $150 per month. It was not ascertainable at the date of the contract, nor at any time before the end of the year, but at the end of the year, by a simple process of arithmetical computation on the excess over $144,000, the plaintiff's salary could be known. The fixed part of the plaintiff's salary, $150 per month, and the percentage $2,582.14 added, determined the year's compensation to be $4,382.14.

The question as to whether the contract alleged by the appellee was, in fact, the contract of the parties or not, and as to whether appellee had performed all of its terms and conditions, was submitted to a jury, and that jury, by its verdict, found in favor of the appellee.

The item of $150 per month was no more a part of the contract for salary, nor any less a part thereof, than the item of percentage.

The question is, then, the appellant having partly performed the contract, by monthly payments, and the appellee having fully performed on his part, does this part performance by one of the parties and full performance by the other take the case out of the statute of frauds?

This is a case of first impression in this jurisdiction, and we are therefore not bound by any decision of this court; but we are at liberty to adopt that view of the law that appeals to us as most consonant with reason and justice. If it were an executory contract, we would not hesitate in holding it unenforceable; but the fact is that it has been executed by appellee and largely by appellant.

MacDonald v. Crosby, 192 Ill. 283, 289, 61 N.E. 505, 507, announced this rule: "It is insisted that the court erred in sustaining the demurrer to the pleas setting up the statute of frauds. The first plea is that the promise declared upon was not to be performed within one year; and the second, that whatever promise was made by the defendants was a promise to answer for the debt of Mr. Crosby. As to the first, the demurrer was properly sustained, on the ground that the contract declared upon was fully and completely performed upon the part of the plaintiff, and nothing remained to be done by the defendants but to pay the money. Curtis v. Sage, 35 Ill. 22. We do not understand, under the rule in...