Matthews v. Wallace

• Citation: 78 S.W. 296,104 Mo. App. 96
• Parties: MATTHEWS v. WALLACE.
• Decision Date: 19 January 1904
• Court: Court of Appeal of Missouri (US)

78 S.W. 296

104 Mo. App. 96

MATTHEWS v. WALLACE.

Court of Appeals at St. Louis, Missouri.

January 19, 1904.

STATUTE OF FRAUDS—PLEADING—CONTRACT OF EMPLOYMENT—EVIDENCE—DAMAGES —HARMLESS ERROR.

1. A complaint need not show a contract is without the statute of frauds; it is a matter of defense to show it is within the statute.

2. A contract of hiring for an indefinite time is not within the statute of frauds, as it may be performed to the satisfaction of the parties within a year.

3. Admission of hearsay evidence bearing exclusively on a fact that is undisputed is harmless.

4. Plaintiff, to diminish his damages by reason of defendant's breach of his employment, is not bound to seek other employment, where he is waiting in reasonable expectation of being called into service by defendant at any time.

5. That plaintiff is paid commissions on sales of horses to defendant after the time he testifies he was employed by defendant to train his horses is not inconsistent with his assertion of employment, the sales having been initiated prior to the employment.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Action by E. Foss Matthews against William A. Wallace. Judgment for plaintiff. Defendant appeals. Affirmed.

G. W. Emerson and E. W. Major, for appellant. Tapley & Fitzgerrell, for respondent.

Opinion.

GOODE, J.

Plaintiff sued on a contract of hiring, alleging that in September, 1902, he and the defendant made an agreement by which the defendant employed him as a horse trainer at the wage of $40 a month, and, as an additional consideration, plaintiff's board; that plaintiff then notified defendant he was ready to begin work; and that he remained ready to begin it from the time the contract was made until this suit was started. Certain acts of employment performed by the plaintiff under the contract are also stated, with an allegation that plaintiff fully performed all the conditions of the contract, but that the defendant wholly failed to perform. The suit originated before a justice of the peace, and no answer was filed by the defendant.

It is said that plaintiff cannot recover because of the insufficiency of the complaint in failing to allege that the work which the plaintiff was required to do could be performed within a year, which omission authorized the inference that the contract was within the statute of frauds. It was not incumbent on the plaintiff to show affirmatively in his complaint that the contract fell outside the statute of frauds. That it was within the statute was matter of defense, if the fact could be shown. But in truth the hiring was for no definite time, and it was therefore without the statute, because the contract might have been performed to the satisfaction of the parties within a year. Biest v. Ver Steeg Shoe Co., 97 Mo. App. 137, 70 S. W. 1081.

The point is made that the weight of the evidence is against the plaintiff's version of the hiring; as to which it suffices to say that, if we thought this was so, we would be powerless to interfere, as there is substantial evidence on both sides of the question as to what were the terms of the contract. Plaintiff swore he hired to the defendant in August, 1902, provided he could obtain a release from a contract he had...