Oakes v. Chicago Fire Brick Co.

• Decision Date: 11 January 1945
• Docket Number: No. 27946.,27946.
• Citation: 388 Ill. 474,58 N.E.2d 460
• Parties: OAKES v. CHICAGO FIRE BRICK CO.
• Court: Illinois Supreme Court

388 Ill. 474

58 N.E.2d 460

OAKES

v.CHICAGO FIRE BRICK CO.

No. 27946.

Supreme Court of Illinois.

Nov. 22, 1944.

Rehearing Denied Jan. 11, 1945.

Appeal from Second Division Appellate Court, First District, on Appeal from Superior Court, Cook County; William J. Lindsay, Judge.

Action by J. L. Oakes, Jr., against the Chicago Fire Brick Company for breach of an employment contract. A judgment for plaintiff was affirmed, 321 Ill.App. 298, 53 N.E.2d 42, and the defendant appeals.

Affirmed.

Alfred Roy Hulbert, of Chicago, for appellant.

Levinson, Becker, Peebles & Swiren, of Chicago (Don M. Peebles and Joseph H. Albaum, both of Chicago, of counsel), for appellee.

THOMPSON, Justice.

Appellee, J. L. Oakes, Jr., filed a third amended complaint, in the superior court of Cook county, against appellant, Chicago Fire Brick Company, an Illinois corporation, charging that appellant, on March 8, 1937, entered into an oral agreement employing appellee as salesmanager, for a period of one year, his services to begin March 29, 1937, on a stipulated salary of $6000 a year, payable at $500 a month; that he moved to Chicago and, on or about March 28, 1937, commenced work for appellant at its Chicago office; that appellant, without cause, terminated the employment about a month thereafter, and that by reason thereof appellee is entitled to recover the sum of $10,000. Appellant filed a motion to dismiss on the ground that the complaint showed on its face that the contract was unenforceable because it was not to be performed within a year and was not in writing. The trial court sustained the motion, but on appeal, the Appellate Court reversed the judgment and remanded the cause, on the ground that the Illinois Statute of Frauds does not constitute a bar to said action. 311 Ill.App. 111, 35 N.E.2d 522.

On remandment, appellant filed an answer denying that such a contract was made and averring that the discharge of appellee was for good cause, and in the answer set up the affirmative defense ‘that the oral contract alleged in the third amended complaint was not a contract such as could be performed, nor was it intended by the parties to be performed within one year from the date of the actual making of the contract.’ The jury returned a verdict for appellee and fixed the amount of recovery at $6347, and judgment was entered on the verdict. On a second appeal to the Appellate Court the judgment of the superior court was affirmed and leave to appeal to this court was granted. 321 Ill.App. 298, 53 N.E.2d 42.

No questions of fact are presented in the briefs and arguments submitted. Appellant assumes that the record shows that the alleged contract, which was entered into in the State of Pennsylvania, was to be performed in the State of Illinois, or that the parties so intended, and argues that the law of the place of performance controls as to the remedy sought and that section 1 of our Statute of Frauds, Ill.Rev.Stat. 1943, chap. 59, par. 1, providing that no action shall be brought on such a contract unless the agreement or some memorandum or note thereof shall be in writing, is a complete bar to a recovery. Appellee, on the contrary, stresses the point that the Statute of Frauds is substantive in nature, and that the rule followed in case of a conflict of laws is that the application of the statute, as a bar to the suit, depends upon the lex loci contractus, and not upon the law of the forum, which only controls where the statute involved is remedial or procedural and not substantive. Appellee's counsel state in the opening paragraph of their brief that the sole question presented by this appeal is whether the Illinois Statute of Frauds is applicable to a suit brought in this State on an oral contract, not to be performed within one year, made in Pennsylvania, and valid and enforceable in that State. It is then stated that the answer depends upon whether the Illinois statute is substantive or remedial in nature. Appellee's counsel then assert that the case of Miller v. Wilson, 146 Ill. 523, 34 N.E. 1111,37 Am.St.Rep. 186, is a complete answer to appellant's contention.

It is true the Miller case, above cited, holds, arguendo, that the laws which subsist at the time and place of making the contract enter into and form a part of it, and that such rule embraces alike those which affect its validity, construction, discharge and enforcement. Edwards v. Kearzey, 96 U.S. 595, 24 L.Ed. 793. By way of argument, this court, in the Miller case also approved a statement found in Roundtree v. Baker, 52 Ill. 241, 4 Am.Rep. 597, to the effect that a statute of frauds embracing a pre-existing parol contract not before required to be in writing would affect its validity. But when the opinion in the Miller case is analyzed in view of the facts in the particular case, it falls far short of being either on all fours or analogous to the facts involved in the instant case. In that case the contract involved was executed in Kansas, related to property in that State, and was to be performed in Kansas. Under any of the rules in respect to the application of a statute to either the validity or enforcement of a contract, the law of Kansas applied in that case.

The case of Roundtree v. Baker, 52 Ill. 241, 4 Am.Rep. 597, settles nothing insofar as the questions here involved are concerned, because in that case the question of the validity of a promissory note executed in payment for a slave purchased in a slave State was assailed in this State because such a consideration was repugnant to the public policy and laws of Illinois. This court refused to ignore the comity-of-States doctrine and allowed a recovery.

It has been authoritatively stated that in the construction of contracts and in determining their...