Kiene v. Shaeffing
Decision Date | 22 September 1891 |
Citation | 49 N.W. 773,33 Neb. 21 |
Parties | F. G. KIENE v. CHARLES SHAEFFING |
Court | Nebraska Supreme Court |
ERROR to the district court for Boone county. Tried below before TIFFANY, J.
AFFIRMED.
Charles Riley, for plaintiff in error, cited: Peter v. Compton, 1 Smith's Lead. Cas. [8th Am. Ed.], 614; Brown, Stat of Frauds [4th Ed.], 332; 3 Parsons, Cont. [6th Ed.], 39, 57; Stone v. Dennison, 13 Pick. [Mass.], 1.
James S. Armstrong, and I. L. Albert, contra, cited: Connolly v. Giddings, 24 Neb. 131; Walker v. R. Co., 1 S.E. [S. Car.], 336; Bullock v. Turnpike Co., 3 S.W. [Ky.], 129; R. Co. v. Scott, 10 S.W. [Tex.], 99; 1 Addison, Cont. [Am. Ed.], 318, sec. 212.
This action was brought by the plaintiff against the defendant to recover the sum of $ 190 excess of money paid for wages unearned. An itemized copy of the account is set out in the petition.
The defendant in his answer On the trial of the cause the jury returned a verdict for the defendant, upon which judgment was rendered dismissing the action.
The testimony shows that in August, 1885, the defendant began to work for the plaintiff as a farm hand, at $ 25 per month. On this point there is no dispute. He continued in the service of the plaintiff for forty-two months. Upon this point there is no controversy neither is there any dispute as to the amount of money which the plaintiff has paid to the defendant--the aggregate being $ 1,031.85.
The plaintiff contends that there were two contracts; that after the expiration of the first month's service the parties made a new contract whereby the defendant was to have steady work and continue in the plaintiff's employment at $ 20 per month. The contract was oral.
The plaintiff asked the following instruction: This the court refused to give, and such refusal is now assigned for error and is the principal ground on which a reversal is sought.
The instruction was properly refused. The statute only applies to contracts which cannot be fully performed according to the intent of the parties, within the year. To be void the contract must be one that by its very terms shows that it was not to be completed within the year. ...
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