Kouchoucos v. Gilliam, 16066

• Decision Date: 23 October 1959
• Docket Number: No. 16066,16066
• Citation: 328 S.W.2d 817
• Parties: Mike KOUCHOUCOS, Appellant, v. Ray H. GILLIAM, Appellee.
• Court: Texas Court of Appeals

Page 817

328 S.W.2d 817

Mike KOUCHOUCOS, Appellant, v. Ray H. GILLIAM, Appellee.

No. 16066.

Court of Civil Appeals of Texas, Fort Worth.

Oct. 23, 1959.

Rehearing Denied Nov. 20, 1959.

Adams & Browne and Gilbert T. Adams, Beaumont, for appellant.

Cureton & Lanham, Waco, Keith Mehaffy, McNicholas & Weber and Quentin Keith, Beaumont, for appellee.

RENFRO, Justice.

This is a suit on an oral contract. Appellant, Mike Kouchoucos, alleged that in September of 1956 he and appellee Ray H. Gilliam entered into a contract whereby appellant was to operate the Beaumont Petroleum Club and to receive for his services seventy per cent of the membership fees and dues paid by the members and seventy per cent of the gross income from the club. The club actually opened on June 1, 1957, and appellant's connection with the club was terminated on June 15. Appellee refused to pay appellant the seventy per cent claimed for membership fees and dues collected up to June 15; hence this suit.

Concerning the duration of the contract, appellant testified, 'it was under the same terms, a ten year lease or terminated on my death.' By 'under the same terms', he referred to a written contract between the same parties on another venture. The language of the written contract reads, as to duration, 'The term of this contract and agreement shall be for a period of ten years * * *. This contract and agreement shall, however, terminate on the death of the Operator (appellant) * * *.'

After appellant rested, the court granted appellee (defendant) an instructed verdict on the ground appellant's cause of action was barred by Article 3995, R.C.S. Vernon's Ann.Civ.St. art. 3995. The pertinent part of said statute is as follows: 'No action shall be brought in any court 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 party 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.'

In Chevalier v. Lane's, Inc., 147 Tex. 106, 213 S.W.2d 530, 531, 6 A.L.R.2d 1045, the Supreme Court, after noting 'The employment period was fixed in calendar terms, so to speak, and contained no reference to the possible death of plaintiff or other contingency that might prematurely terminate the arrangement', held: '* * * where, by the terms of the oral agreement, its period is to extend beyond a year from the date of its making, the mere possibility of its termination by operation of law within the year, because of death or other fortuitous event, does not render paragraph 5 of the Statute inapplicable, but that, on the other hand, where the agreement may, by its own terms, be fully performed within the year, as, for example, the agreement in Wright v. Donaubauer, 137 Tex. 473, 154 S.W.2d 637, 639, for employment during the term of a man's life, the Statute does not apply.' The Court added, 'We also take occasion here to reaffirm our holding in Wright v. Donaubauer (154 S.W.2d 637) * * *.' The Wright case holds: 'By the terms of the contract, same would be terminated by the death of Leonards, which might have occurred at any time after the making of the contract. This...