Massion v. Mt. Sinai Congregation

• Decision Date: 30 April 1929
• Docket Number: 1548
• Citation: 40 Wyo. 297,276 P. 930
• Parties: MASSION v. MT. SINAI CONGREGATION [*]
• Court: Wyoming Supreme Court

276 P. 930

40 Wyo. 297

MASSION v. MT. SINAI CONGREGATION ^[*]

No. 1548

Supreme Court of Wyoming

April 30, 1929

APPEAL from District Court, Laramie County; CLYDE M. WATTS, Judge.

Action by Shavie Massion against the Mt. Sinai Congregation. Judgment for defendant, and plaintiff appeals.

Affirmed.

For the plaintiff and appellant, there was a brief and oral argument by John F. Delaney of Cheyenne, Wyo.

Defendant's demurrer admits the truth of allegations of the petition, but denies their sufficiency to constitute a cause of action. I Bancrofts Pl. 294; Comm'rs. v. Denebrink, 15 Wyo. 342, 89 P. 7. The court erred in sustaining the demurrer. The petition set out the contract. The action was maintainable under Sec. 5560 C. S., in the name of a personal representative. 5561 C. S. The contract was complete in itself. Lawler v. Bart, 7 O. S. 340. 13 C. J. 540. The rule of liberal construction is applied to contracts for support, made with persons of declining years. 13 C. J 554-555. The judgment should be reversed.

For the defendant and respondent, there was a brief by Haggard &amp O'Mahoney of Cheyenne, Wyo., and oral argument by Mr Joseph C. O'Mahoney.

The agreement is within the statute of frauds and void, since it was not to be performed within one year. Sec. 4719 C. S. Nothing less than full performance by one party, will suffice to take the contract out of the statute. 27 C. J. 356. The plaintiff had not performed her part of the agreement, which required more than one year for performance. The agreement was therefore, unenforceable by plaintiff. Long v. Packing Co., (Cal.) 101 P. 297. The statute allowed plaintiff two years within which to bring suit, of which one year, one month and eleven days remained after the making of the contract, which was void. 27 C. J. 93. Reynolds v. Bank, 87 N.W. 912; Akins, et al. v. Hicks, et al., 83 S.W. 75; Town Co. v. Harper, 204 S.W. 452. The contract is not severable. 13 C. J. 526, 528. The statute of frauds applies if a suit is brought against a person who could not perform within one year. 27 C. J. 436. 25 R. C. L. 462; Whipple v. Parker, 29 Mich. 369.

John F. Delaney, in reply.

The contract is severable. 13 C. J. 561. The common sense rule is, to construe the agreement according to the intention of the parties. 13 C. J. 562; Wellsville v. Geisse, 3 O. S. 333. The agreement is enforceable, at least in part. Doan v. Daw, (Ind.) 35 N.E. 710; I Elliott Contrs. 439; Oliphant v. Markham, 79 Tex. 543.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

The record in this case is before us upon direct appeal from a judgment of the District Court of Laramie County. The parties will hereinafter be referred to as they appeared before the trial court, the appellant Shavie Massion there being the plaintiff, and the respondent Mount Sinai Congregation being the defendant.

Plaintiff's petition, after setting out averments that the defendant is a domestic corporation, that the plaintiff is the widow of Enoch Massion, deceased, and that defendant is the owner of a building in the city of Cheyenne, Wyoming, charges that on or about September 23, 1919, defendant employed plaintiff's husband to attend to the boiler used for heating defendant's building; that while thus employed, said boiler--permitted by the defendant, carelessly and negligently, to become worn out and unsafe and known by it to be so--exploded and injured plaintiff's husband so badly that he died from his injuries, leaving her in necessitous circumstances. The pleading then alleges, to use its exact language:

"That said defendant through its officers, agents and committees, on or about the 11th day of August, 1920, promised and agreed with this plaintiff that if she would forego instituting an action as personal representative of the deceased Enoch Massion for damages, sustained by reason of negligence of the defendant aforesaid; that it, The Mount Sinai Congregation, would provide this plaintiff with sufficient money to enable her to live in reasonable comfort for the term of her natural life, and that also, and for the same consideration, the defendant by its officers, agents and committees promised and agreed to maintain a room in the Memorial Hospital of Cheyenne, Wyoming, for Jews, the same to be free of charge to patients, and maintained in memory of the said Enoch Massion, deceased; and also for the same consideration, promised and agreed to buy and keep in the Jewish Synagogue an elaborated Bible or Talmud, the same to perpetuate the memory of Enoch Massion, deceased. And the defendant for the same consideration, promised and agreed with this plaintiff to provide her with a pew in the Jewish Synagogue for the term of her natural life, and free of all charges."

Plaintiff further alleges "that she has kept and performed all the conditions of her contract" and, relying on defendant's promises aforesaid, "has abstained from bringing any action in any court for damages resulting to her through the negligence of the defendant, as aforesaid," and cannot now bring an action for "the wrongful death of the deceased" because the bar of the Statute of Limitation has fallen. It is then charged that the defendant has wholly failed to perform any part of its agreement, and that plaintiff has been damaged in a claimed amount, for which judgment is prayed.

To this petition the defendant interposed a general demurrer. It was stipulated and agreed in the court below and is so here, that the alleged contract of August 11, 1920, was entirely oral. The action below was instituted November 14, 1927, about nine months before the eight year Statute of Limitations concerning oral agreements would have become operative (W. C. S. 1920, Sec. 5568).

The trial court sustained the demurrer and as the plaintiff decided to stand upon her petition, a judgment dismissing the action was entered against her. The errors assigned are the sustaining of defendant's demurrer to plaintiff's pleading and the entry of the judgment dismissing her suit.

The principal question raised by these assignments and which was argued orally and by brief on behalf of the defendant, is whether the oral contract sued upon is rendered void by the terms of our Statute of Frauds (W. C. S. 1920, Sec. 4719), the portions of the statute pertinent here being:

"In the following cases every agreement shall be void unless such agreement, or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith:

"First--Every agreement that by its terms is not to be performed within one year from the making thereof."

We are not aided in plaintiff's main brief by a discussion of the operative force of this statute as it may affect the pleading under consideration, it merely being claimed that she performed her part of the agreement. The rule relative to the particular clause of the law invoked by the defendant is thus stated in 27 C. J. 175, Sec. 90:

"An oral undertaking to do a particular act during, at or after a definite period of time which is more than a year after the making of the agreement is within the express language of the statute and cannot be enforced."

This language has the full support of many cases cited in connection with the text. 25 R. C. L. 452, Sec. 26, referring to the particular clause of the statute under consideration here, says:

"The object of this provision is said to be to prevent contracts not to be performed within the year from being vouched by parol evidence, when at a future period any question might arise as to their terms. It includes only such agreements as, fairly and reasonably interpreted, do not admit of a valid execution within the space of a year. On the other hand, it is within the statute, as a general rule, if the time for the full performance of the contract exceeds a year though the excess be ever so little."

Supplementing the statement first above quoted, the same work also states (27 C. J. 181-2, Sec. 100) that:

"A verbal contract or agreement which, although it stipulates no definite time for its performance, will of necessity, according to a reasonable interpretation of its terms, require more than a year for its performance is within the statute and void. * * * And so where a party to a parol contract agrees to do something which by law he is not permitted to do within a year, such agreement is within the statute."

Browne on the Statute of Frauds (5th Ed.) Sec. 285, on the same subject remarks:

"One thing is well settled and admitted in all cases; that the contract must be capable of entire and complete execution within the year."

And to this author's statement may be added that this must be true with reference to at least one of the parties to the contract, according to the numerical weight of authority (I Williston on Contracts, 990, Sec. 504).

Mr. Williston, in the work just cited at page 966, also uses phraseology similar to that quoted from Browne, supra, to this effect:

"It is well settled that the oral agreements invalidated by the statute because not to be performed within a year include those only which cannot be performed within that period."

In the light of these statements of the law dealing with the matter now under consideration--statements which we may take as accurate--let us examine that part of the alleged oral contract, the performance of which rested upon the plaintiff. As pleaded, her promise was that she "would forego instituting an action as personal representative of the deceased Enoch Massion, for damages." Was this a promise which "fairly and reasonably interpreted" could not be performed within a year? The agreement was made August 11 1920. The right of action for causing the alleged wrongful death of plaintiff's...