McCashland v. Keogh

• Court: Utah Supreme Court
• Writing for the Court: FRICK, J.
• Citation: McCashland v. Keogh, 32 Utah 11, 88 P. 680 (Utah 1906)
• Decision Date: 13 December 1906
• Docket Number: 1771
• Parties: McCASHLAND v. KEOGH et al

88 P. 680

32 Utah 11

McCASHLAND v. KEOGH et al

No. 1771

Supreme Court of Utah

December 13, 1906

APPEAL from District Court, Third District; T. D. Lewis, Judge.

Action by Dolly McCashland against P. S. Keogh and another. From a judgment of nonsuit of the district court of Salt Lake county on appeal from the city court of Salt Lake City, plaintiff appeals.

Appeal dismissed.

D. B Shields and Snyder & Snyder for appellant.

APPELLANT'S POINTS.

Full performance by plaintiff removes the case from the operation of the statute. (29 Enc. Law, p. 811, note 8. Lowman v Sheets, 124 Ind. 416; Fraser v. Gates, 118 Ill 99, 1 N.E. 817; Bless v. Jenkins, 129 Mo. 647, 31 N.W. 938; Lally v. Crookston Lbr. Co. [Minn.], 88 N.W. 846; 3 Current Law, p. 1527, note 59. Blanton v Knox, 3 Mo. 342; Pitcher v. Wilson, 5 Mo. 48; Suggett v. Cason, 26 Mo. 221; Self v. Cordell, 45 Mo. 345; McConnell v. Brayner, 63 Mo. 461; Mitchell v. Branham [Mo.], 79 S.W. 739.)

If we concede that the contracts sued on in this case were originally within the statute, and therefore unenforcible, still we insist that by permitting full compliance by appellants, respondents have waived the right to claim the benefits of the statute, even if they had pleaded it. (McCutcheon v. Caldwell [Ky. App.], 13 S.W. 1072; Lally v. Lbr. Co. [Minn.], 88 N.W. 846; Spinney v. Hill, 81 Minn. 316, 84 N.W. 116.) Respondents permitted appellant to fully perform and, after receiving the benefits of that performance, and encouraging it by partial performance on their part, now seek to avoid liability by claiming the benefits of the statute. That they should not be permitted to do this, see Crane v. Powell, 139 N.Y. 389, 34 N.E. 911; Lally v. Lbr. Co., supra; Keller v. Bley, 15 Or. 429, 15 P. 707; Kriger v. Leppel, 42 Minn. 6, 43 N.W. 484.

The statute of fraud must be pleaded. This court has announced the rule in very positive terms that the statute of frauds, if relied upon as a defense, must be pleaded. In Abba v. Smith, 21 Utah 109, 119, it is said: "The plea of the statute of frauds is a personal privilege which a party may waive, and by failing to specifically plead it as a defense, defendant could not afterward avail himself of its benefits. This is the general and approved rule." 9 Enc. of Pl. and Pr., pp. 705, 715, 716; Lauer v. Richmond Inst., 8 Utah 305, 308. Lawrence v. Chase, 54 Me. 196; Lewis v. Teal [Ala.], 2 So. 903; Espalla v. Wilson, 86 Ala. 487, 5 So. 867;Crane v. Powell, 139 N.Y. 389, 34 N.E. 911; 3 Current Law, p. 1534, sec. 13; 9 Enc. Pl. and Pr., pp. 705, 715, 716, 717. 8 Amer. and Eng. Enc. Law, p. 747, note 2;Graffam v. Pierce, 143 Mass. 386, 9 N.E. 819; Lawrence v. Chase, 54 Me. 196;Farwell v. Tillson, 76 Me. 227; Bird v. Munroe, 66 Me. 346; Dock Co. v. Dewey, 6 Gray 446.)

Sutherland, Van Cott & Allison for respondents.

RESPONDENT'S POINTS.

This court will not consider the evidence offered by the appellant in the trial court, because appellant has not excepted to the ruling of the trial court to the effect that the evidence was insufficient to establish the contract. (Evans v. Jones, 10 Utah 182; Thiele v. Koster, 63 Cal. 241; Lucas v. Richardson, 68 Cal. 618; McCartney v. Fitz Henry, 16 Cal. 185; People v. Morino, 85 Cal. 515; Marsters v. Lash, 61 Cal. 622.)

The alleged contract is claimed to be oral and for a term of two years. Therefore, under the statute of frauds, it is void. (R. S. 1898, sec. 2467; Swift v. Swift, 46 Cal. 268; Koch v. Williams, 82 Wis. 186; Scott v. Bush, 29 Mich. 523; Patten v. Hicks, 43 Cal. 509; 18 N.H. 293.)

The cases on this subject go no farther than to hold that if one party to such an agreement performs his part of it within a year, he may compel performance by the other party, without regard to the time conditioned for performance by the latter. (Frary v. Sterling, 99 Mass. 462; Lockwood v. Barnes, 3 Hill [N.Y.] 128; Broadwell v. Getman, 2 Denio [N.Y.] 87;Warner v. Tex. & P. Ry. Co., 54 F. 922; Frary v. Sterling, 99 Mass. 462; Browne, Statute Frauds, sec. 451; 2 Story, Eq. Jur., secs. 759, 1522, note 3; Railroad v. McAlpine, 129 U.S. 305; 9 S.Ct. 286.)

Even if part or full performance upon one side could possibly avail to take a parol agreement out of the statute, such performance must have been on the faith of the contract, and incapable of explanation except through the terms of the contract. (26 Enc. Law, p. 53; Senior v. Anderson, 115; Cal. 507; Cooley v. Lobdell, 47 N.E. 784; Abba v. Smith, 21 Utah 109; May v. Sloan, 101 U.S. 237; Dunphy v. Ryan, 116 U.S. 495.)

"In order to bind the principal, it must appear that the act done by the agent was in the exercise of the power delegated, and within its limits." (Blum v. Robertson, 24 Cal. 128, 141; Moyle v. Cong. Society, 16 Utah 69.)

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

This action originated in the city court of Salt Lake City. The plaintiff sued to recover upon an alleged parol contract for personal services performed by her for the defendants. The amount involved was two hundred dollars. Plaintiff obtained a judgment in said court for the full amount against the defendant Keogh, from which he appealed to the district court of Salt Lake county. When the case came on for trial in that court the plaintiff was nonsuited, and judgment dismissing the action, and for costs, was duly entered against her, from which she appeals to this court.

We are met at the threshold with the question whether this court has jurisdiction of the appeal in this case. In view that the question was not raised or presented by either party, this court must do so on its own motion. We have no right to proceed to a decision of the merits of any case where the law forbids us the right to do so, whether the parties desire it or not. Any judgment we may render in a case respecting the merits, where we had no jurisdiction, would always and everywhere be a nullity, giving neither a right to anything, nor a protection to any one. The question therefore is, has this court jurisdiction of this appeal? We think not. This question was before this court in the case of Garcia v. Free, 88 P. 30, just decided, in which case we held that this court, in view of the provision contained in chapter 52, p. 48, Laws 1903, had no jurisdiction in cases appealed from judgments in the city court to the district court, unless the judgment in the district court exceeded the sum of one hundred dollars exclusive of costs. The judgment of the district court in this case was one of dismissal of plaintiff's action merely, and for costs. There is, therefore, no judgment such as permits an appeal to this court. This was the very question presented and decided in the case of Garcia v. Free, supra. That case received thorough and careful consideration, and governs the decision in this case. For the reasons fully stated in the Garcia Case, the appeal in this case must be, and accordingly is, dismissed at costs of the appellant.

McCARTY, C. J., and STRAUP, J., concur.

ON REHEARING.

In this case counsel for appellant have filed a petition and argument for rehearing, in which it is strenuously insisted that the conclusions reached in the case of Garcia v. Free, 88 P. 30, decided by this court at this term, are erroneous, and, in view that the decision in this case is based entirely upon that, therefore, the decision in this case is likewise erroneous. In view of the importance of the questions presented, and in deference to counsel's contentions, we have again carefully gone over the whole subject discussed in the Garcia Case as supplemented by the arguments in the petition for a rehearing in this case, but we have found nothing, either in counsel's arguments or in the authorities cited by them, that leads us to a result different from that reached by us in the Garcia Case. Indeed, in pursuing the subject farther, we have been strengthened, if possible, in the views expressed in the opinion filed in the Garcia Case. In 1891 the Legislature of Colorado passed an act very similar in its provisions to the one passed on by us (Sess. Laws Colo. 1891, p. 118), which has been repeatedly passed on by both the court of appeals and the Supreme Court of Colorado, and those courts have held precisely as we hold upon the right to an appeal in cases where the right depends on the amount of the judgment. (Timerman v. South D. R. T. Co., 20 Colo. 147, 36 P. 901; Crane v. Farmer, 14 Colo. 294, 23 P. 455; Sons of Am. B. & E. Ass'n v. Denver, 15 Colo. 592, 25 P. 1091; Commissioners v. Aspen, etc., Co., 1 Colo. App. 125, 27 P. 875.) The Court of Appeals of New York has likewise passed upon the question and has arrived at the same conclusion, as appears from the following cases: Roosevelt v. Linkert, 67 N.Y. 447; Belfer v. Ludlow, 129 N.Y. 650, 29 N.E. 320. Indeed, we have not been able to find any authorities sustaining any other conclusion where the amount of the judgment is the jurisdictional amount. The cases cited by counsel, all being cases wherein is discussed the amount in controversy or in dispute, have, and can have, no application. The case of Baber v. Pittsburg Ry. Co., 93 Ill. 342, cited by counsel in their petition for a rehearing, is, however, precisely in accord with the conclusions reached by us upon the point, that, in cases like the one at bar, the amount of the judgment, not the amount in controversy, controls. The authorities, therefore, are against the contentions of counsel upon this point and practically leave no room for either doubt or contention upon the correctness of our conclusions upon this point, and therefore no reason exists why a rehearing should be granted.

Counsel also reargue the question of inequality in respect to the parties to the action. Upon that subject we are...