Oak Leaf Mill Company v. Cooper

• Decision Date: 25 March 1912
• Citation: 146 S.W. 130,103 Ark. 79
• Parties: OAK LEAF MILL COMPANY v. COOPER
• Court: Arkansas Supreme Court

146 S.W. 130

103 Ark. 79

OAK LEAF MILL COMPANY v. COOPER

Supreme Court of Arkansas

March 25, 1912

Appeal from Hot Springs Circuit Court; W. H. Evans, Judge; reversed.

Judgment reversed and cause remanded.

N. P Richmond and Henry Berger, for appellant.

1. Since the contract could not be performed within one year from the date of the making thereof, it clearly fell within the statute of frauds. 53 Tex. 9; 37 S.W. 379; Kirby's Dig., § 3654, subdiv. 6; 118 S.W. 373; Browne, St Frauds (4 ed.) § 511; 1 Greenl. Ev. (15 ed.) § 86.

2. After both rested, it was error to admit further testimony to show a renewal of the contract within a year. An oral agreement not to be performed within a year is not to be validated by a mere oral restatement of it within the year. 110 N.Y.S. 185; 164 N.Y.S. 451. A new contract is requisite.

3. The proof must conform to the allegations of the complaint. 46 Ark. 96; 84 Id. 311; 85 Id. 42.

4. The general manager was not authorized to make such a contract. The burden was on plaintiff to show such authority. 31 Cyc 1644; 1 Am. & Eng. Enc. Law (2 ed.) 968.

5. It was the province of the court, not the jury, to determine the validity of the contract--a question of law. Thompson on Trials, § 1106; 20 Ark. 590.

6. The court's instructions are inconsistent and can not be reconciled. 46 Ark. 84. Instructions must correspond with the pleadings. 62 Mo. 59; Id. 70. Thompson on Trials, § 2309.

John C. Ross, for appellee.

1. The allegations of the complaint are broad enough to admit proof of the renewed contract. Pleadings are liberally construed. 31 Ark. 657; 77 Id. 5; 96 Id. 163; 77 Id. 5; 96 Id. 163.

2. Appellant can not complain of evidence not strictly within the pleadings, if he introduced evidence to the same point. 97 Ark. 109; 75 Id. 251; 67 Id. 47.

3. The question of an alleged contract in parol is a question of fact for the jury. 9 Cyc. 786 (b); Thompson on Trials, § 1105-8; 21 Mo. 284; 55 Mich. 284, 386; 23 Mo.App. 536; 112 Pa.St. 377; 37 Me. 74; 50 Ark. 92; 89 Id. 368.

4. A party can not complain of an error in instructions asked by an opponent if the same error was repeated in instructions asked by himself. 94 Ark. 528; 81 Id. 579; 93 Id. 589, 472.

5. The burden was on appellant to show its general manager had no authority to make the contract. 31 Cyc. 1645, 1640. The manager was a general agent. Mech. on Ag., § 6. And the presumption is that he acts within the scope of his authority. 94 Mich. 343; 99 Minn. 176; 16 La.Ann. 119; 9 Ala. 279; 96 Ark. 460; 90 Id. 305.

6. The statute of frauds must be specially pleaded. 32 Ark. 79; 71 Id. 302; 96 Id. 184.

N. P. Richmond and O. A. Graves, in reply.

Under a general denial of the contract a party may avail himself of the statute of frauds. 19 Ark. 23; Id. 39, 47.

OPINION

FRAUENTHAL, J.

This is an action for the recovery of damages for an alleged breach of a parol contract for personal services. The appellant is a domestic corporation, engaged in the manufacture of lumber, and in his complaint the appellee alleged that in October, 1910, through its general agent, the appellant employed him to work for it during the entire year of 1911 at a salary of $ 100 per month; that he began to work for appellant under said contract on January 2, 1911, and continued to work thereunder until January 11, 1911, when he was discharged without cause. He alleged that appellant had paid him his wages for the month of January, 1911, but refused to make any further payment to him; and he sought by this suit to recover $ 100 per month for the remainder of said year. The appellant denied that it had employed appellee for a year, or for any period longer than by the month, or that it had discharged him without cause. It further pleaded the statute of frauds as a bar to any recovery upon the alleged contract. The trial resulted in a verdict in favor of the appellee.

The appellee testified that about October 1, 1910, he was employed by the appellant at a salary of $ 75 per month, and later during the same month, on October 20, 1910, he entered into a verbal agreement with appellant's manager whereby he was employed for the remainder of the year 1910 and all of the year 1911 at a salary of $ 100 per month; that he continued work until December 24, 1910, when he became sick; that he returned to work on January 2, 1911, and worked until January 5, when he again became sick and returned on January 11, to continue his work, when he was discharged without cause. Appellee then introduced other witnesses whose testimony tended to corroborate him as to his sickness, and introduced no further testimony than his own relative to said alleged oral contract. He then rested his case, and the appellant moved the court for a peremptory instruction. Thereupon counsel for appellee asked that he be permitted to introduce other testimony in order to further develop his case, which request was granted by the court over appellant's objection. The appellee then testified that on January 2, 1911, he orally renewed the contract for his employment for the entire year of 1911, and entered upon the service under such renewal.

It is urged by counsel for appellant that the court erred in refusing to give a peremptory instruction when appellee had closed his testimony and in permitting the introduction of this further testimony, for the reason that there was no allegation made in the complaint that the contract sued upon was made in January, 1911, but, on the contrary, that it was alleged that the contract was made in October, 1910. But if we should hold that the allegation that the contract was made in January, 1911, can not be inferred from the averments made in the complaint, still the court had the right to permit this pleading to be amended in that particular, and, even after all of the evidence was in, it had the right to permit the complaint to be amended so as to conform to the proof thus made. Our statute of amendments is very liberal. Kirby's Digest, §§ 6140, 6145 and 6148. Under these provisions of the statute, it has been held by this court that where the parties to a cause have directed their proof to a certain issue consistent with the original claim, but not within some allegation made by the complaint, an amendment of such pleadings will be allowed to conform to the proof. Trippe v. Duval, 33 Ark. 811; Railway Company v. Dodd, 59 Ark. 317.

The allowance of such an amendment is left largely to the discretion of the trial court; and unless it appears that the complaining party has been materially prejudiced by reason of such amendment being allowed, such discretion of the trial court will not be controlled. McFadden v. Stark, 58 Ark. 7, 22 S.W. 884; Rucker v. Martin, 94 Ark. 365, 126 S.W. 1062, and cases there cited.

The appellant does not claim that it was surprised by the admission of this testimony. It did not ask for a continuance to meet the altered issue, if such it was, nor does it now claim that it was not thereafter able to adduce all the testimony which it desired relative to this issue. It follows that it was not prejudiced by the ruling of the court in admitting this testimony and thereby in permitting the complaint to be amended in this regard if it was necessary for that to be done.

It is also contended by counsel for appellee that appellant did not in its answer plead the statute of frauds, but we are of the opinion that the answer sufficiently sets up this plea; and if the appellee thought that the language was ambiguous in this particular, it was his duty to ask that this pleading be made more definite and certain. This plea of the statute of frauds was recognized at the trial as an issue in the case, and testimony was directed towards it, and instructions given bearing upon it, so that it would appear that both parties, as well as the trial court, understood that the answer set up the plea of the statute of frauds

The manager testified that he made no contract at any time with appellee whereby he employed him for a longer period than one month, and that he made no contract of any kind with him in January, 1911, and that he had reasonable cause for discharging him on January 11. These were issues in the case, but the cause was also tried upon the plea made by the appellant of the statute of frauds. Upon this plea, the appellant asked the court to give, amongst others, the following instruction, which was refused:

"4. The court instructs the jury that if you find from the evidence in the case that the only contract made between the plaintiff and the defendant in which it was agreed that the plaintiff was to receive $ 100 per month for his services, was made on October 20, 1910, and to extend through said year of 1910 [103 Ark. 84] and 1911, and that the plaintiff presented himself on January 2, 1911, to carry out said contract so made, the court instructs you that the defendant was not legally bound to receive him into its service; and, if it did so, it had a right to discharge him without incurring any other liability than for the payment of his wages for the time he actually served."

At the request of the appellee, however, the court gave the following instruction:

"1. You are instructed that this is a suit for the recovery of damages on account of an alleged wrongful discharge of plaintiff by the defendant. This suit is brought upon an alleged oral contract between plaintiff and defendant's general manager, and you are to be the judges of what the contract was, after taking into consideration all of the evidence and circumstances bearing upon the case. If you believe from a preponderance of the evidence that plaintiff was employed by the defendant's general manager to fill the position of shipping clerk for a part of the year of 1910...