Nickell v. Johnson

• Decision Date: 04 February 1915
• Citation: 162 Ky. 520,172 S.W. 938
• Parties: NICKELL ET AL. v. JOHNSON.
• Court: Kentucky Court of Appeals

172 S.W. 938

162 Ky. 520

NICKELL ET AL. v. JOHNSON.

Court of Appeals of Kentucky.

February 4, 1915

Appeal from Circuit Court, Wolfe County.

Action by J. M. Nickell and another against Ellis Johnson. From a judgment sustaining a demurrer to the petition, plaintiffs appeal. Reversed and remanded.

S Monroe Nickell, of Hazard, for appellants.

MILLER C.J.

This appeal involves the correctness of the judgment of the circuit court which sustained a demurrer to plaintiffs' petition, and subsequently dismissed it upon appellant's failure to amend it.

Briefly stated, the petition alleges that prior to December 1, 1912 the appellant Nickell, and the appellee, Johnson, were partners engaged in running a stage line for the carriage of passengers and the United States mail between Hazel Green and Hellechawa, towns in Wolfe county about six miles apart; that in December, 1912, Johnson announced his intention to leave Kentucky and go West, and offered to sell out his half interest in the stage line to his partner, Nickell, and to Coldiron, who was running a rival line between the same points; that the plaintiffs, Nickell and Coldiron, accepted Johnson's proposition by buying his interest in said hack line, including his good will, and his interest in the partnership and the business in which they were engaged Johnson reserving to himself his two horses and hack which he had used in the business; and that the consideration for said trade was $20 in cash and the agreement of appellants to carry the mail and release Johnson from any liability upon that undertaking. The petition further alleges that Johnson agreed not to operate or run a stage line or carry passengers or express between said points, or intervening points, at any time while the said Nickell should continue the business between said points, and that the said Johnson would conduct no business between said points in opposition to or in competition with the plaintiffs, Nickell and Coldiron. It is further alleged that it was not the object or purpose of the parties to said contract to raise or increase the rates charged for carrying passengers, freight, or express between said points, and that plaintiffs had not increased said rates, which were only reasonable and compensatory charges for the services rendered. Nevertheless, according to the petition, Johnson broke his contract by placing his hack back on said road and carrying passengers between said points in competition with the appellants, and to their damage in the sum of $500. The petition prayed judgment against Johnson for $500 and for an injunction restraining him from either directly or indirectly operating or running a hack or carriage in violation of his contract.

Since the circuit judge assigned no ground for sustaining the demurrer to the petition, and the appellee has filed no brief in this court, we can only conjecture the reason for the ruling of the circuit court.

The demurrer could not have been sustained upon the theory that the contract was in violation of the statute of frauds, in that it was not to be performed within one year. It is true the contract specified no time for its duration; but that did not make the contract unenforceable. The statute of frauds (section 470, subsection 7, of the Kentucky Statutes), which prohibits the bringing of an action upon an agreement which is not to be performed within one year from the making thereof unless the contract be in writing, refers to a contract which, by its terms, is not to be performed within a year, and which, from its stipulations, is not capable of being performed within a year. In Stowers v. Hollis, 83 Ky. 548, the rule is stated as follows:

"If the performance of a contract depends upon a contingency which may happen within a year, then it is not within the statute, although that contingency may not in fact happen until after the expiration of the year; and although the parties may not have expected that it would occur within that period. It is sufficient if the possibility of performance existed."

If the contract is capable of being performed within a year, it is not within the statute. To illustrate: If A. agrees to pay B $100 when B. marries, the agreement is not within the statute, because the time of performance is not fixed in the contract at a period beyond a year. So, a contract to provide for one during his life is not within the statute, for the same reason. In these illustrations, there is nothing in the contract to preclude their performance within a year by fixing their time of performance beyond a year. These illustrations are taken from Dickey v. Dickinson, 105 Ky. 751, 49 S.W. 761, 20 Ky. Law Rep. 1559, 88 Am. St. Rep. 337, where Dickey, the plaintiff in the circuit court, had bought from Dickinson his one-third interest in the "Glasgow Times" newspaper; Dickinson having obligated himself not to again engage in the newspaper business in the town of Glasgow. Dickinson violated his contract by starting a rival newspaper, whereupon Dickey sued to enforce his contract. That action is in principle on...