Scharff v. Standard Tank Car Co.
| Decision Date | 03 June 1924 |
| Docket Number | No. 18479.,18479. |
| Citation | 264 S.W. 56 |
| Parties | SCHARFF v. STANDARD TANK CAR CO. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Franklin Miller, Judge.
Action by Clarence L. Scharff against the Standard Tank Car Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Wood & Teasdale, of St. Louis, for appellant.
Randolph Laughlin, of St. Louis, for respondent.
This is an action for breach of contract for personal services. The jury awarded plaintiff a verdict for $4,166.80, and from the judgment entered thereon defendant appealed.
I Defendant contends that an instruction in the nature of a demurrer to the evidence should have been given the jury by the trial court, because plaintiff's evidence established an oral contract to employ plaintiff for one year, which was within the statute of frauds, to wit, section 2169, R. S. of Mo. 1919. That part of the said section apposite reads:
"No action shall be brought * * * upon any agreement that is not to be performed within one year from the making thereof, unless the agreement upon which the action shall be brought, or some memoranda or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized."
Plaintiff's evidence tends to show that during a second conversation, at which Mr. Wood-Smith, representing defendant, and plaintiff and Mr. Frumberg were present, had on October 15, 1920, plaintiff was engaged for one year at $5,000, beginning that day, to be paid in semimonthly installments, although he was paid monthly after that.
Mr. Frumberg, plaintiff's witness, testified:
Plaintiff testified:
"He then furnished me two books; one an inspection book; I think the title was `All About Tank Cars,' and the other was a rather claborate affair that the Standard Tank Car Company gets out, a leather-bound book, showing various tanks and tank cars that they manufacture, and he instructed me then I was employed from that day on, and to take those books with me and to study them over thoroughly; there was a great deal of technical knowledge that was necessary to become acquainted with in the sale of the tank car, and he told me to return the following morning, which was Saturday, and that was practically all that occurred at that meeting."
Plaintiff's evidence further tended to show that Mr. Wood-Smith was vice president of the defendant company, and that he employed plaintiff to travel in territory to be designated and to sell and negotiate the sale of tank cars; that plaintiff continued in the employ of defendant until about December 1, 1920, a period of about six weeks, when he was told by Mr. Wood-Smith that his services were no longer required. He was paid his salary to December 15, 1920, inclusive, although discharged about December 1st.
Defendant's evidence tends to show that by check dated November 15, 1920, plaintiff was paid $402.75. It also tends to show that plaintiff signed a receipt as follows:
On redirect examination plaintiff testified that the check for $402.75 was one day short of one month's pay.
Defendant contends that the contract of employment, as shown by the evidence, was within section 2169, R. S. of Mo. 1919, commonly known as the statute of frauds.
It seems concluded by our decisions that the construction of the words, "within one year from the making thereof," is interpreted as meaning that the year runs from the day the agreement is made and not from the day when the performance is to begin. Blest v. Versteeg Shoe Co., 97 Mo. App. 137, 70 S. W. 1081. Our decisions also seem to conclude that in an action at law nothing short of full performance on the part of one party will take the case out of the statute. Johnson v. Reading, 36 Mo. App. 306; affirmed in Nally v. Reading, 107 Mo. 350, 17 S. W. 978; Hillis v. Rhodes, 205 Mo. App. 439, 223 S. W. 972.
Plaintiff's evidence tends to show that his contract of employment for one year began October 15, 1920, the day of the making of the contract. The words of the statute "within one year" we construe as including an entire or full year, but it may not be construed as extending beyond that time. The statute does not preclude the bringing of actions on agreements that can be performed within one year, but only interdicts an agreement that cannot be performed within one year. It will be noticed that the statute, to wit, section 2169, forbids oral leases for a longer time than one year, and it follows that oral leases for one year are without the statute. Donovan. v. Brewing Co., 92 Mo. App. 341. We construe the words "within one year" in this connection with the same force and effect as the words "for a longer time than one year." The statute under consideration has the same force as though it read: "No action shall be brought upon any agreement that requires longer than one year from the making thereof to perform." Consequently, the statute does not interdict agreements that are to be performed within one year, but only such agreements as are not to be performed within one year. Therefore, an agreement made on October 15, 1920, for services for one year to begin that day, or from that day on, is a contract to be performed within one year from the making thereof, and is not a contract not to be performed within one year. It follows that the contract sued upon is without the provisions of the statute and is enforceable. Embrey v. Dry Goods Co., 115 Mo. App. 130, 91 S. W. 170; Dykema v. Piano Co., 220 klen. 300, 190 N. W. 838, 27 A. L. R. 860, and annotations. We have just held, relative to the statute of limitations regarding demands against the estates of deceased persons, in substance, that, where letters of administration were granted on a certain day, and the demand was filed on the corresponding day of the next year, in which the first day was excluded and the last day included, that the claim was filed within the year. Old Bank of Stoutsville v. Curtiss (Mo. App.) 260 S. W. 812 (handed down April 1, 1924). By analogy we think that section 7058, R. S. of Mo. 1919, relative to the construction of statutes, is applicable to section 2169.
Some contention is made by defendant that, as plaintiff receipted for 8402.75 salary from October 18, 1920, to November 15, 1920, it is demonstrated that the year did not begin until October 18, 1920. But it does not follow that, because plaintiff made no contention regarding a day's salary and waived it, the year did not begin to run on or from. October 15, 1920. Plaintiff testified, "And he (Mr. Wood-Smith) instructed me that 1: was employed from that day on." ?be cause was properly submitted to the jury,
IL Defendant challenges the action of the trial court in giving plaintiff's instruction No. 1, as modified by the court, to the jury. It as follows:
"The court instructs the jury that, if you find and believe from the evidence that heretofore, to wit, on October 15, 1920, the defendant orally employed plaintiff as defendant's traveling representative (a) for one year then beginning, and that plaintiff accepted (b) said employment, and then and there agreed to render service to defendant as defendant's traveling representative for (c) the said year, and that the defendant then and there and in consideration thereof promised and agreed to pay plaintiff 85,000 in semi-monthly installments, and traveling expenses and board and lodging while on the road, and that plaintiff entered upon, and (d) performed his duties (e) under said contract, and that thereafter, and on or about December 15, 1920, the defendant (f) wrongfully discharged the plaintiff from (g) said contract, and prevented plaintiff from thereafter performing his duties thereunder, and that plaintiff was willing, able, and offered to continue therein, then you are instructed to return a verdict in favor of plaintiff and against defendant for such sum as you may find and bebelieve from the evidence is equivalent to plaintiff's salary (h) at said rate of $5,000 year for the (i) unexpired period of the contract, plus such sum, if any, as you may find and believe from the evidence is equivalent to what his board and lodging would have been on the road, within the territory where he was to travel for the defendant, for the proportion of time, if any, during which you may find and believe from the evidence he would have been traveling for the defendant had he been permitted to go on and complete his contract, if any; not to exceed, however, for this item, an amount equal to such reasonable amount, if any, as you may find and believe from the evidence plaintiff actually paid, if any, for such board and lodging for such proportion of time, if any; provided, however, that, if you further find and believe from the evidence that during the (j) unexpired period of the contract, if any, plaintiff, by the exercise of due care, could have obtained a similar employment in the same locality (k) covered by his contract with defendant, then you should deduct from his damages, if any, such sum as you may find and believe from the evidence the plaintiff could reasonably have earned by his own exertions during such period and under such similar employment, if any."
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