Municipal Gas Co. v. Gilkeson

• Citation: 16 P.2d 247,160 Okla. 284,1932 OK 722
• Decision Date: 01 November 1932
• Docket Number: 22659.
• Parties: MUNICIPAL GAS CO. v. GILKESON.
• Court: Supreme Court of Oklahoma

16 P.2d 247

160 Okla. 284, 1932 OK 722

MUNICIPAL GAS CO. v. GILKESON.

No. 22659.

Supreme Court of Oklahoma

November 1, 1932

Rehearing Denied Nov. 29, 1932.

Instruction on subject of statute of frauds, Comp. St. 1921, § 5034 subd. 1, which in part placed burden upon plaintiff to prove that it was understood at time that the work agreed to be done under the contract should be completed or performed within the period of one year from the date of the contract before the plaintiff would be entitled to recover, was erroneous because it should have been to effect that the work could have been completed or performed within a period of one year from the date of the contract.

Syllabus by the Court.

1. "The statute of frauds applies only to contracts which by their terms, are not to be performed within that time. In other words, to make a parol contract void, it must appear that it was the understanding of the parties that it was not to be performed within a year from the time it was made." Walker v. Johnson, 96 U.S. 424, 24 L.Ed 834.

2. "In determining when contracts come within the one-year statute of frauds, courts have been governed by the words 'not to be performed.' They have treated them as negative words. In construing them, it is said: 'It is not sufficient to bring the case within the statute that the parties did not contemplate the performance within a year but there must be a negation of the right to perform it within the year."' Arkansas Midland R. Co. v. Whitley, 54 Ark. 199, 15 S.W. 465, 11 L. R. A. 621.

3. "In determining when contracts come within the one-year statute of frauds, the courts have been governed by the words, 'not to be performed.' They have treated them as negative words. To bring a particular contract within the statute there must be a negation of the right to perform it within a year." 27 C.J. 174.

4. Record examined; held judgment of the trial court affirmed.

Appeal from District Court, Muskogee County; W. J. Crump, Judge.

Action by J. R. Gilkeson against the Municipal Gas Company. Judgment for the plaintiff, and the defendant appeals.

Affirmed.

Jno. W. Porter, of Muskogee, for plaintiff in error.

Benjamin B. Wheeler, of Muskogee, for defendant in error.

McNEILL J.

This is an action instituted in the district court of Muskogee county, Okl., on March 25, 1930, for the recovery of balance due on account in the sum of $258.64, for work and labor performed and for the sum of $2,122 for damages and breach of an alleged verbal contract. Two causes of action were pleaded.

Plaintiff alleged that he was employed by the defendant, Municipal Gas Company, a corporation, to do boring under the streets, alleys, street car lines, railroads, and other obstructions where the defendant wished to lay its gas pipe line in the city of Muskogee, Okl., at and for an agreed price of $2 per foot, and that the defendant prevented him from carrying out the terms of this verbal agreement and itself bored 2,224 feet and 4 inches, whereby plaintiff was damaged in the sum of $1 per foot, which represented his profit on said boring. Plaintiff further alleged that defendant agreed to pay plaintiff in addition thereto for work incidental to said boring as set forth in an itemized statement attached to the petition.

The defendant filed an answer containing a general denial as to both causes of action and pleading payment as to the balance due on plaintiff's first cause of action, and, as a further defense, defendant pleaded that the contract sued upon was in violation of the first statute of frauds, to wit, "An agreement that by its terms is not to be performed within the year from the making thereof," and that, by virtue thereof, there could be no recovery on the part of the plaintiff. The court permitted this pleading in reference to the statute of frauds to be made during the trial after the plaintiff had introduced his evidence and rested.

The plaintiff replied by way of general denial. The case was tried before the court and jury, resulting in a verdict in favor of the plaintiff and against the defendant in the full amount sued upon in the first cause of action in the sum of $258.84 and in the sum of $1,236.56 on plaintiff's second cause of action.

The defendant assigns as error that there was an abuse of discretion on the part of the court in overruling the motion of defendant for continuance. We think there is no merit in this contention, as the court permitted the defendant to read a part of his motion for continuance as testimony in the case; plaintiff not admitting the truthfulness of the statements contained in said affidavit, but merely admitting that the witness would testify to those things contained in the affidavit if he were present. The defendant also complained in reference to plaintiff's first cause of action that the plaintiff had been overpaid.

Plaintiff alleged and proved that he did extra work for the defendant in addition to the balance due and unpaid for the boring in the sum of $108.50. The jury resolved these facts in favor of the plaintiff, and returned a verdict for the plaintiff on plaintiff's first cause of action for the full amount pleaded in the sum of $258.64. We find no error in this question. Defendant's major proposition concerns his plea of the statute of frauds. Counsel for defendant contends that the contract sued on comes plainly within the first section of the statute of frauds. Section 5034, C. O. S. 1921, is as follows:

" Statute of frauds. The following contracts are invalid, unless the same, or some note or memorandum thereof, be in writing and subscribed by the party to be charged, or by his agent:

First. An agreement that, by its terms, is not to be performed within a year from the making thereof."

It is the theory of the defendant that it would take more than a year to do all the boring required under the contract, and that it was not the intention of the parties to do the same within a year; that the contract was based on the franchise, and the franchise was for twenty-five years. The franchise which had been granted to the defendant by the city of Muskogee for the selling and distribution of natural gas in said city was for a term of twenty-five years. It appears that this franchise was effective on October 23, 1928, and the contract to bore the streets was made with the plaintiff on or about June 1, 1928. The statute of frauds referred to is to be treated as containing negative words. The statute does not say that the contract must be completed within a year to be valid, and it does not say that it is invalid if it may not be completed within a year. It states that the contract is invalid if it is not to be performed within a year from the making thereof.

The Supreme Court of the United States, in the case of Walker v. Johnson, 96 U.S. 424, 24 L.Ed. 834, said: "To make a parol contract void within the Statute of Frauds, it must appear affirmatively that it was not to be performed within a year."

25 R C. L. 454, § 29, announces the following rule: "In order to bring a contract within the infra annum clause, it must appear affirmatively that it is not to be performed within the year. And it has been said that the purpose of the statute is to provide only for a case in which there cannot be an actionable breach within the specified time. So it is the generally accepted rule that to bring a contract within its operation there must be an express and specified agreement not to be performed within the space of a year; if the thing may be performed within the year, it is not within the statute, a restricted construction being given to the statute on account of the negative form of the provision. A contract is not brought within the statute by the fact that the full performance within a year is highly improbable, nor by the fact that the parties may not have expected that the contract would be performed within the year. This is said to be true if there is a possibility of its being performed within a year, and there is no stipulation that it shall not be so performed. If an agreement is capable of being performed within a year it is not within the statute,...