Mrs. K. Edwards & Sons v. Farve

• Decision Date: 13 March 1916
• Citation: 71 So. 12,110 Miss. 864
• Parties: MRS. K. EDWARDS & SONS v. FARVE
• Court: Mississippi Supreme Court

71 So. 12

110 Miss. 864

MRS. K. EDWARDS & SONS v. FARVE

Supreme Court of Mississippi

March 13, 1916

March 1916

APPEAL from the circuit court of Hancock county, HON. J. J BALLINGER, Judge.

Suit by Cameron Farve against Mrs. K. Edwards & Sons. From a verdict for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Bowers & Griffith and E. J. Gex, for appellants.

We deny that it is the rule in Mississippi or anywhere else that parties by their contract must expressly provide that it should extend for more than twelve months to bring it within the statute of frauds because, if the court please, such a construction of the statute would reduce the matter to an absurdity. Let us assume, if your honor please, for the sake of argument, that A owned one hundred lots of land and agreed with B that B. should build him one house each month, no more and no less, upon the land; it would be apparent from the very terms of the contract that it was expected to last more than twelve months, and such is the contract that was made in this case. The fact that appellee might have died within twelve months does not change this rule at all, because the contract was made on the assumption that the whole of the land was to be logged and the damages sued for are for the failure to permit him to log the whole of the land. Certainly the court cannot find from this record that there was any possibility of the contract being completed within twelve months, or that the parties contracted with a view to its completion within twelve months, and unless the court can so find the case must be reversed.

We take it that there is no doubt that the case will be reversed because the court failed to submit the question of the statute of frauds to the jury, refusing all instructions whatever drawn along that line, but we insist that when it is reversed it should be dismissed, because of the fact that the evidence of Mitchell shows that there had been hauled at the time of the trial, which occurred sometime after the breach of the contract at least sixty-seven thousand logs, and that there were approximately thirty odd thousand left on the land. This evidence was perfectly competent and was uncontradicted by any competent proof, which went to show that that many logs had not been hauled from this land, and the appellee availed himself of the evidence of the same book in his cross-examination of Mitchell which is set out in the original brief filed by appellant in this case, to which the attention of the court is respectfully invited.

In the conclusion of their brief appellee stated in concluding their argument on statute of fraud "that of all this," referring to the statute of frauds was submitted to and fully argued before the jury who disregarded the flimsy disguise which is now attempted to be put over this court."

And replying thereto, we call the court's attention to the fact that the question of the statute of frauds was never submitted to the jury but the court refused any instructions whatever on that subject, and the statute of frauds "was not argued before the jury, because, of course, no argument could be made on it without instruction to base it on, and no such charge having been given, no argument was made on the statute of frauds to the jury." We cannot understand how appellee's counsel have so stated in their brief, because such is manifestly not the fact as the court can clearly see from the record.

Gex &amp Waller, for appellee.

Now while we submit there is no proof at all in the record to support any theory to avoid the contract involved in this matter because of the statute of frauds, and while we contend that the statute of frauds proposition could not be raised but by a special plea, to be tried specially, yet for the purpose of following counsel in their argument, we submit that this contract was not within the statute of frauds, even if the jury had found for the defendant, thereby establishing that same might not have been completed within one year.

In re Chaffe & Sons v. Benoit, 60 Miss. 39, this court stated: "Here is no force in the objection that the lease was for more than a year, and was void because not in writing. It was for the "crop season of 1880" which might or might not be for more than twelve months, it is lawful, though its actual completion may in fact require a longer period. Brown on the State. Fr., sec. 273, et seq."

This court has held time and again that where no time of performance is fixed in the contract, same will never be presumed to be in violation of the statute of frauds, and in the case of Duffy v. Snyder, 54 Miss. 252, this court said:

"It is unnecessary to decide whether this principle would justify a recovery of the price of a house built upon another's land, under a void contract, without proof of a taking possession or use of the house by the landowner (which this record leaves doubtful); because the verdict and judgment here are sustained by other proof in the record. It was proved that, in 1873-74, when, Snider was about to make some additions to the house, Mrs. Duff told him that she was afraid that he was going to make the house too costly; but that, if he would do nothing further, she would pay for it; and Snider thereupon forebore to make the additions. There was no time fixed by this agreement for making the payment; and it is well settled that, when no time of performance is fixed, the contract will never be presumed to be in violation of the statute of frauds." Jackson v. Railroad, 76 Miss. 607; Tate v. Stockstill, et al, reported in 52 So. 192.

From the above it will be seen that, regardless of what the rule is in other states, in Mississippi, the parties by their contract must expressly provide that it will last over a year to bring a contract within same, and whether it lasts over a year or not will not avoid it, if the contract...