Mcclanaiian v. Otto-marmet Coal & Mining Co
| Decision Date | 23 June 1914 |
| Citation | 82 S.E. 752,74 W.Va. 543 |
| Court | West Virginia Supreme Court |
| Parties | McCLANAIIAN. v. OTTO-MARMET COAL & MINING CO. |
Rehearing Denied Sept. 15, 1914.
(Syllabus by the Court.)
Error to Circuit Court, Putnam County.
Assumpsit by A. S. McClanahan against the Otto-Marmet Coal & Mining Company, for breach of contract. Judgment for plaintiff, and defendant brings error. Affirmed.
Brown, Jackson & Knight, of Charleston, for plaintiff in error.
In an action of assumpsit for the alleged breach of a contract for the cutting of timber, plaintiff recovered a judgment for $500, and defendant was awarded this writ of error.
The contract was oral, and the principal question presented is: Does it come within the seventh clause of the statute of frauds, forbidding action upon "any agreement that is not to be performed within a year, " unless it is in writing and signed by the party to be charged or his agent?
Plaintiff and defendant's general manager, Edward Schonebaum, who employed him, do not agree as to the terms of employment. Plaintiff testifies that he was employed in February, 1907, to cut all the bank timber from two certain tracts of land owned by defendant and deliver it at its mine, at $60 per thousand for 7-foot posts, $50 per thousand for 6 1/2-foot posts, $45 per thousand for 5 1/2-foot posts, and $45 per thousand for ties, and was to be paid monthly. According to his testimony, no time was fixed for the completion of the agreement. He began work on the job in April, 1907, and continued until about the 15th of November, 1910, when he says defendant employed another man to do the cutting and wrongfully discharged him. Plaintiff admits receiving pay for all the work he did. The suit is to recover damages on account of profits that he would have made if he had been permitted to complete his job. On the other hand, Mr. Schonebaum testifies that he employed plaintiff to cut and deliver bank posts and ties, but for no specified time. He denies that he employed him to cut all the timber on the tracts of land. They agree as to the price and time of payment. The jury must have found in favor of plaintiff's version of the contract, and, for the purpose of this review, we must assume that it was the contract between the parties. In his cross-examination, in answer to a question as to the length of time it would take him to cut the timber, plaintiff says:
Plaintiff's expectation that it would take him five or six years to complete the job, does not bring the contract within the statute of frauds. Browne on Statute of Frauds, § 273, says, that much reasoning has been expended to determine the meaning of the words "to be performed, " as used in the statute, and further says:
"The result seems to be that the statute does not mean to include an agreement which is simply not likely to be performed, nor yet one which is simply not expected to be performed, within the space of a year from the making; but that it means to include any agreement which, by a fair and reasonable interpretation of the terms used by the parties, and in view of all the circumstances existing at the time, does not admit of performance according to its language and intention, within a year from the time of its making."
From the terms of the agreement, as gathered from the testimony of plaintiff, it cannot be said that any time was agreed upon for its completion, nor that it was impossible of performance in a year. It can only be said that it was not likely to be performed, nor expected by plaintiff to be performed, within a year. This was held, in Kimmins v. Oldham, 27 W. Va. 259, not to be sufficient to bring an agreement within the statute. There is nothing in the testimony of plaintiff from which it can be said that the parties intended that the contract should not be performed within a year from the time of its making, nor is its subject-matter such as to render its performance within a year impossible. The identical question presented in this case was recently decided by us in Reckley v. Zenn, 81 S. E. 565, and we there held that:
"A verbal contract, the terms of which do not expressly provide for performance beyond a year, or by fair and reasonable construction contain anything inconsistent with complete performance within that time, is not within the statute of frauds."
That was an action to recover a balance claimed to be due plaintiff on a timber cutting contract, and defendant relied on the statute of frauds. In that case, as in this, plaintiff admitted that he expected to be more than a year in completing the contract. But nothing was said, at the time he was employed, as to when the work should be completed, and it appeared that it was possible to perform it within a year.
The statute is taken from 29 Car. II, c. 3, and the clause in question is practically the same in all the states. A few cases from English courts and from the courts of the different states will serve to illustrate the construction and application made of it by other courts.
In consideration that his creditor wouldnot sue him during his lifetime, a debtor promised that his executor should pay the debt after his death. The agreement was held not to be within the statute, because the debtor might die, and the contract thereby be completed within a year. Wells v. Horton, 4 Bing. 40, 130 Eng. Rep. 683. So, also, a contract to support a child for a guinea a month, so long as its father should think proper, was held not within the statute. The father had the option to limit the time of performance within a year. Souch v. Straw-bridge, 2 C. B. 808, 135 Eng. Rep. 1161. An oral agreement between husband and wife, compromising legal proceedings between them, whereby they agreed to live separate and apart, the husband agreeing to pay the wife a weekly sum, and she agreeing to maintain herself and the children thereon, was held not to be within the statute. In his opinion in this case, after considering previous decisions construing the statute, Lord Justice Lindley says:
"The effect of these decisions is that, if the contract can by a possibility be performed within the year, the statute does not apply." McGregor v. McGregor, 21 Q. B. 424.
The great weight of authority in the United States is in line with the English cases. In Peters v. Westborough, 19 Pick. 364, 31 Am. Dec. 142, the Supreme Court of Massachusetts held that an oral agreement to support a child 12 years of age until she was 18 was not within the statute of frauds. Judge Wilde in his opinion says:
Roberts v. Rockbottom Co., 7 Mete. (Mass.) 46, was a case involving an oral contract, whereby said company had employed plaintiff and had agreed that:
"He should serve them, upon the terms agreed on, five years, or so long as Leforest should continue their agent."
The court held the agreement not to be within the statute. The duration of the...
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...Jones v. Shipley, 122 W.Va. 65, 7 S.E.2d 346 (1940); Wood & Brooks Co. v. Hewitt Lumber Co., supra; McClanahan v. Otto-Marmet Coal & Mining Co., 74 W.Va. 543, 82 S.E. 752 (1914); Reckley v. Zenn, supra; and it is only necessary that the contract be capable, by reasonable construction, of fu......
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