Murphy v. Haan

• Decision Date: 12 February 1902
• Citation: 89 N.W. 100,116 Iowa 61
• Parties: JOSEPH MURPHY, Appellee, v. C. DE HAAN, Appellant
• Court: Iowa Supreme Court

89 N.W. 100

116 Iowa 61

JOSEPH MURPHY, Appellee, v. C. DE HAAN, Appellant

Supreme Court of Iowa, Des Moines

February 12, 1902

Appeal from Polk District Court.--HON. C. P. HOLMES, Judge.

ACTION for the agreed price of work and labor performed at defendant's instance and request. Defendant denies the alleged contract, admits certain payments referred to by plaintiff, and says that plaintiff has been paid in full for all labor performed. The case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals.

Affirmed.

Phillips Ryan & Ryan for appellant.

I. Ross Thompson and Read & Read for appellee.

OPINION

DEEMER, J.

Plaintiff claims in his petition that on August 20, 1898, defendant, by oral contract, employed him (plaintiff) as a general salesman, for the term of one year, at the agreed compensation of $ 60 per month; that he immediately entered into defendant's service and continued therein for the term of 10 months and 11 days; that defendant has paid him the sum of $ 391; and that there yet remains due the sum of $ 233. Defendant's answer, as we have seen, was a general denial, and a plea of payment.

It is contended that, while the petition states a valid cause of action, plaintiff proved a contract within the statute of frauds, in that, according to his evidence, he was not to commence work on the day the contract was entered into, but at some future time, and that the contract was made three or four days before he actually began the service. Defendant moved to strike out this evidence, because within the statute, but the motion was overruled. He also challenges the instructions of the court, for the reason that they ignore the statute of frauds. Remembering that this is an action for work and labor performed at an agreed price per month, it is difficult to see how the statute of frauds affects the case. Contracts within the statute are not void, and, if performed or partly performed, they are, to the extent of such performance, taken out of the statute. When executed, or so far as executed, such contracts are valid, and as binding as if they had been in writing. This statute was not enacted for the purpose of aiding one in the perpetration of a fraud, but to secure him from the consequence thereof. It was intended as a shield, and not as a sword. According to the evidence, defendant had the benefit of plaintiff's services, and he cannot be heard to say that they were performed under a contract which would have been invalid had it remained executory in character. Lowman v Sheets, 124 Ind. 416, (24 N.E. 351, 7 L. R. A. 784); Swanzey v. Moore, 22 Ill. 63 (74 Am. Dec. 134); Abbott v. Inskip, 29 Ohio St. 59; Simmons v. Headlee, 94 Mo. 482, (7 S.W. 20). If the action were to recover damages for breach of the contract, a different rule would apply. Decisions announcing doctrines contrary to the one we have adopted may, no doubt, be found, but we are not disposed to follow them. Vide Jacobs v. Railroad Co., 8 Cush. 223. Under any theory, the evidence was admissible for the purpose of showing that the services were not gratuitous. Almost without exception, the cases on which defendant relies were actions for breach of contract in wrongfully discharging the employee, or in denying him work under the contract. They have no application here.

II. Plaintiff was permitted to show by a Miss Kelsey that defendant stated to her that he would pay plaintiff at the end of the year $ 150 or $ 200. This was objected to by defendant because it did not tend to prove a contract. There is no merit in this objection. That plaintiff did perform labor for the defendant during at least a portion of the time in question is admitted. Defendant claims, however, that plaintiff was to receive but $ 9 per week for his services unless he (plaintiff) improved the business, and that if he did so he would give him more, and that he...