Itt Cannon Elec., Inc. v. Brady

• Decision Date: 13 October 1967
• Docket Number: No. 2,No. 20583,20583,2
• Citation: 230 N.E.2d 114,141 Ind.App. 506
• Parties: ITT CANNON ELECTRIC, INC., Appellant, v. George BRADY, Appellee
• Court: Indiana Appellate Court

Page 114

230 N.E.2d 114

141 Ind.App. 506

ITT CANNON ELECTRIC, INC., Appellant, v. George BRADY, Appellee.

No. 20583.

Appellate Court of Indiana, Division No. 2.

Oct. 13, 1967.

Henry J. Price, Indianapolis, for appellant, Barnes, Hickam, Pantzer & Boyd, Indianapolis, of counsel.

Richard P. Watson and John C. Carvey, Indianapolis, for appellee, Gregg, Fillion, Hughes & Northrup, Indianapolis, of counsel.

BIERLY, Judge.

This action was commenced in the trial court by the appellee filing his complaint, which alleged in part that;

'* * * (P)laintiff entered into a certain agreement for employment by which the defendant hired and engaged the plaintiff to work for it as Branch Sales Manager in Indianapolis, Indiana, for a minimum term of eighteen (18) months from said date for which services defendant therein promised and agreed to pay the plaintiff the sum of $1,020.24 per month payable in bi-monthly payments. Said defendant further agreed that in the event on and after the eighteen (18) month period said Indianapolis office should for any reason be closed, that said plaintiff would be transferred to another area paying him the same salary. Part of this oral agreement is reflected in an inter-office memorandum made a part hereof and filed herewith as Exhibit 'A'.'

Appellee was living in Chicago, Illinois, at the time of the agreement.

After approximately one year in Indianapolis, the appellant discharged the appellee, and the latter initiated this action for the remaining alleged wages due for six months and damges.

Appellant filed his answer in accordance with Supreme Court Rule 1--3, and the case was heard by the court, without the intervention of a jury.

The trial court found for the appellee, and entered judgment accordingly in the sum of $7,473.00 which consisted of $6,120.00 for unpaid wages and $1,353.00 for damages.

Appellant then filed its motion for a new trial, alleging the following:

'1. The decision of the Court is contrary to law.

'2. The decision of the Court is not sustained by sufficient evidence.

'3. There is error in the assessment of the amount of recovery, it being too large.

'4. The decision of the Court on plaintiff's complaint is contrary to law.

'5. The decision of the Court on plaintiff's complaint is not sustained by the evidence.

'6. There is error in the assessment of the amount of recovery on the complaint, it being too large.

'7. An error of law occurred at the trial when counsel for plaintiff asked plaintiff, George Brady, on direct examination, whether he suffered any damage to his business reputation as a result of the alleged breach of contract by defendant and the Court permitted plaintiff to answer this question over the objection of the defendant. Plaintiff answered that he had suffered such damage in the amount of $10,000.00. Defendant's objection that the question called for irrelevant evidence in that such facts did not constitute a recoverable element of damages under Indiana law was improperly overruled.'

The above motion was overruled and then appellant filed its motion in arrest of judgment, the basis of which alleged that the contract, sought to be enforced, was in violation of the Statute of Frauds, (Burns' Ann.Stat. § 33--101, 1949 Replacement) in that it was an oral agreement which is not to be performed within one year of the making.

The appellee filed a motion to deny appellant's motion in arrest of judgment for the reason that the latter was not timely filed.

Thereafter, the court overruled appellant's motion and granted appellee's motion.

Hence, this appeal followed, with the following assignment of errors, to wit:

'1. The Court errored (sic) in overruling appellant's motion for a new trial.

'2. The Court errored (sic) in overruling appellant's motion in arrest of judgment.

'3. The Court errored (sic) in sustaining appellee's motion to deny appellant's motion in arrest of judgment.'

Appellant begins its argument with the proposition that recovery by the appellee is precluded by the Statute of Frauds, (Burns' Ind.Stat.Ann. § 33--101, 1949 Replacement).

The pertinent parts of said Statute are as follows:

'No action shall be brought in any of the following cases:

'Fifth. Upon any agreement that is not to be performed within one (1) year from the making thereof.

'Unless the promise, contract or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized, excepting however, leases not exceeding the term of three (3) years.'

It is to be noted that plaintiff's complaint alleged that '* * * defendant hired * * * plaintiff to work * * * for a minimum term of eighteen (18) months * * *.' Said defendant further agreed, 'that in the event on and after the eighteen (18) month period said * * * office should * * * be closed, * * * plaintiff would be transferred to another area * * *.' (Emphasis Supplied)

It is obvious that the contract falls within the application of the Statute.

The appellee, in his brief, commences his argument by attempting to raise a conflict of laws problem.

The Illinois Statute of Frauds is found at Ill.Rev.Stat.1959, Ch. 59 § 1, and includes the same applicable provision as does our own Statute, namely:

'That 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 promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.'

Thus, since the provisions are the same, it would be useless to go into a detailed discussion of this area of the law, for, whatever conclusion we would reach would have the same result.

Appellee cites only two Illinois cases on the subject of Statute of Frauds, the first of which only an abstract was published. See: Thermal-Tite Insulation Co. v. American Insulation Corp. (1945), 326 Ill.App. 252, 61 N.E.2d 304.

The second case cited is Hall v. Gruesen (1959), 22 Ill.App.2d 465, 161 N.E.2d 345. In that case, the court was considering an oral purchase of goods covering the '1956--1957 garden season.' The Illinois Court held that the period of gardening from the winter of 1956 to the fall of 1957, was not a fixed period of time in excess of one year. There is quite a difference between the ambiguous term in the Hall case, supra, and the eighteen (18) month period in the case at bar.

Appellee continues his argument in the alternative under Indiana law. He states three propositions of law in this regard.

First, he states that the courts of this state 'follow the doctrine that when no express time is selected for performance, and the contract is fully capable of being performed within a one-year period, it will be held to be outside the Indiana Statute of Frauds.'

We fail to see how this statement could possibly help his cause, for it is obvious that his complaint is based upon the eighteen (18) month period of time for performance.

Next, he argues that the Indiana Courts have gone 'one step further and held that even though a contract is to be performed by a certain day, but earlier performance is not precluded, that Indiana will not hold such a contract within the Statute of Frauds.' How can a contract for employment for a mimimum term of eighteen (18) months be completed earlier? We are of the opinion that it cannot, thus since it cannot be performed with one year, it falls within the Statute. See Meyer v. E. G. Spink Co. (1921), 76 Ind.App. 318, 124 N.E. 757, Reh. Denied, 127 N.E. 455.

The question thus becomes, does the memorandum in the case at bar, satisfy the provision in the Statute of Frauds which would take this case outside of its application?

The rule in this regard is stated concisely in the case of Block v. Sherman (1941), 109 Ind.App. 330, 339, 34 N.E.2d 951, wherein the court said:

'The written contract pre-supposes a prior verbal agreement which it embodies. The writing is the evidence of the agreement, and not the essence of it. The memorandum, in order to satisfy the Statute of Frauds, must contain all the essential stipulations and undertakings of the verbal bargain. If any of these stipulations are omitted, then the memorandum--although the parts which it does contain might, by themselves, make a complete contract--is not a note or memorandum of the agreement as required by the statute, and cannot be enforced at law or in equity. See Pomeroy on Specific Performance (1926), sec. 91, p. 225; Butler University v. Weaver (1932), 97 Ind.App. 151, on p. 155, 180 N.E. 875, on p. 879, and numerous cases cited.'

It becomes readily apparent that the memorandum...