Duckett v. Pool

• Decision Date: 02 July 1890
• Citation: 11 S.E. 689,33 S.C. 238
• Parties: Duckett. v. Pool.
• Court: South Carolina Supreme Court

11 S.E. 689

33 S.C. 238

Duckett.

v.Pool.

Supreme Court of South Carolina.

July 2, 1890.

Master and Servant—Entictng Aw at Servant.

1. In an action for damages for knowingly enticing away from plaintiff's service one of his servants, the evidence showed that the servant was hired in the fall of 1888 for the year 1889; that the plaintiff soon after sent a written note to defendant informing him of the contract, and asking him not to have anything to do with the servant, with which request defendant promised to comply; that defendant inquired of the messengers if the contract of hire was in writing; that soon afterwards he sent his wagon, and took the servant from plaintiff's place to his own. Held, that the court erred in granting a nonsuit on the ground that there was no evidence that the servant was enticed away.

2. That a contract for services not to he pel-formed within a year should, by the statute of frauds, (Gen. St. S. C. § 2019,) have been in writing, but was not, though a good defense to an action thereon by either party, constitutes no defense to an action against one who has enticed the servant from his master.

Appeal from common pleas circuit court of Laurens county; James F. Izlar, Judge.

Action for enticing from his master a servant. The contract of hire was verbal, and not to be performed within a year. Gen. St. S. C. § 2019, provides: "No action shall be brought * * * upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement, * * * of some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith."

Ferguson & Featherstone, for appellant.

W. H. Martin, for respondent.

McIver, J. The allegations in the complaint are that plaintiff entered into a contract with one Henry Murrell whereby the latter agreed to live on plaintiff's farm, and work for him, for the year 1889, and that defendant, after notice of this contract, enticed said Murrell from plaintiff's service, to the damage of the plaintiff $500. The only defense interposed was a general denial of all the allegations contained in the complaint. The plaintiff offered testimony tending to show that some time in November, 1888, he made a verbal contract with said Murrell to stay with him for the year 1889 upon the same terms as had been agreed upon between them for the year 1888, but when he was proceeding to state those terms, and had gone as far as to say that he (plaintiff) was to furnish the mule, seed, and plantation tools, and give Murrell one-half that was made, he was stopped by the court with the statement that it was not necessary to give all the terms of the contract; that, in consequence of something that he heard as to the conduct of the defendant in reference to the hands on plaintiff's farm, he sent word to defendant that those hands were under contract with him, "and, as a gentleman, I asked him not to have anything to do with them. " This message appears to have been communicated through the medium of a written note, to which defendant replied, also by written note, saying that he would have nothing to do with the hands if they were under contract. There was also testimony tending to show that, when defendant received the note from plaintiff, he inquired of the bearer of the note, as well as another person, whether the contact was in writing. There was also testimony tending to show that soon after this correspondence between the parties, to-wit, about the 12th of January, 1S89, defendant sent his wagon, and moved said Henry Murrell from plaintiff's place to his own. At the close of plaintiff's tes-timony, defendant moved for a nonsuit upon three grounds: First, because the contract between plaintiff and Murrell, not being in writing, was void under the statute of frauds, inasmuch as it was not to be performed within one year "from the making thereof;" second, "that there is no proof that he enticed him away;" third, "that the relation of master and servant has not been established." The motion for nonsuit was granted by the circuit judge sblely "because there was no evidence that the defendant had enticed, induced, or otherwise caused the man Murrell to leave the employment of the plaintiff." Plaintiff appeals upon three grounds set out in the record, which in fact simply make the single question whether there was error in granting the nonsuit on the ground stated. The respondent, however, according to the proper practice, gave notice that, if the supreme court should be unable to sustain the judgment of nonsuit upon the ground on which it was rested by the circuit judge, he would insist that such judgment should be sustained upon the ground that, the alleged contract between the plaintiff and Murrell being invalid under the statute of frauds, the action could not be sustained. So that the only questions presented by this appeal are (1) whether there was error on the part of the circuit judge in holding that " there was no evidence that the defendant had enticed, induced, or otherwise caused the man Murrell to leave the employment of the plaintiff;" (2)as to the effect of the statute of frauds. It is true that respondent's counsel, in his argument here, lias also undertaken to sustain the judgment of nonsuit...