Stewart v. McKeon

• Decision Date: 10 February 1927
• Docket Number: 1305
• Citation: 252 P. 1024,36 Wyo. 106
• Parties: STEWART v. McKEON [*]
• Court: Wyoming Supreme Court

252 P. 1024

36 Wyo. 106

STEWART v. McKEON ^[*]

No. 1305

Supreme Court of Wyoming

February 10, 1927

APPEAL from District Court, Natrona County.

Action by A. H. Stewart against T. J. McKeon. From a judgment for defendant, plaintiff appeals.

Reversed and Remanded.

Henry E. Perkins and George W. Ferguson, for appellant.

At the beginning of the trial, defendant objected to the introduction of evidence, and ruling thereon was reserved the objection was renewed at the conclusion of plaintiff's case in chief, in the form of a motion to dismiss; the objection and motion was based on the ground that the contract was void under the statute of frauds; 4719 C. S. The evidence shows that the contract was fully performed by plaintiff within one year from the date it was made; it could have been fully performed by both parties within one year, and was not therefore within the statute; at any rate, performance removed the agreement from the statute; 27 C. J. 323, and cases; 20 Cyc. 295; 25 R. C. L. 454-455; Lowman v. Sheets, (Ind.) 24 N.E. 351; Aiken v Nogle, (Kan.) 27 P. 825; In re Lumber Co., 92 F. 585; Hellings v. Wright, (Calif.) 156 P. 365; Franks v. Reeder, (Okla.) 223 P. 126; Dant v Head, (Ky.) 13 S.W. 1073. The agreement could have been terminated within one month after it was made; it was not within the statute; 2 Elliott Contracts, 1277; 25 R. C. L. 28; 1916 E. Ann. Cas. 1138, and note; 27 C. J. 188; Warner v. Ry. Co., 41 L.Ed. 495.

Nichols & Stirrett, for respondent.

The agreement in controversy was that appellant should keep a competing dance hall closed for three years; it was therefore impossible of performance within one year; we accept appellant's citation, Warner v. Ry. Co., 41 L.Ed. 495 and footnotes, which we believe sustains our position; the agreement was one in restraint of trade and not enforceable; 19 R. C. L. 36. It was against public policy; 6 R. C. L. 712, 786; Holland v. Sheehan, 23 L. R. A. (N. S.) 510; Brooks v. Cooper, 35 A. S. R. 800. Contracts, contrary to public policy, are illegal; Kennedy v. Lonabaugh, 19 Wyo. 352.

Henry E. Perkins and George W. Ferguson, for appellant.

Cases cited by respondent may be readily distinguished from the facts in the case at bar; this agreement was not for three years, but was a terminable agreement that might continue not to exceed three years; the presumption is in favor of its validity; 2 Elliott Contracts, 1277; 25 R. C. L. 463. The rule against trade restrictions is subject to numerous qualifications; 6 R. C. L. 808; Hitchcock v. Anthony, 83 F. 779; Oregon Co. v. Winsor, 22 L.Ed. 315. Restrictions upon public dance halls violate no rule of public policy; indeed, it is a serious question whether they should be permitted at all.

BURGESS, District Judge. POTTER, J., and BROWN, District Judge, concur.

OPINION

BURGESS, District Judge.

In his petition filed in the District Court of Natrona County, A. H. Stewart alleged that a verbal agreement was made and entered into by and between him and T. J. McKeon, who was conducting a dance hall in Casper, by the terms of which McKeon promised and agreed that, if Stewart would bring about the discontinuance of dancing at a competing dance hall known as the Moose Hall, he, McKeon, would pay Stewart the sum of $ 200 per month, as long as it was kept closed for dancing, but not to exceed three years; that he, Stewart, duly performed his part of the agreement, and brought about a discontinuance of dancing in the Moose Hall; that there has been no dancing therein for sixteen months and that there was due him from McKeon, by reason of said agreement, $ 3200, which McKeon refuses to pay.

The evidence on behalf of the plaintiff at the trial supported we believe, the allegations of the petition, but upon the conclusion of the plaintiff's case, the court, upon the motion of the defendant, dismissed the action on the ground that the verbal agreement relied upon was within section 4719, W. C. S. 1920, which provides that "every agreement that by its terms is not to be performed within one year from the making thereof shall be void unless such agreement, or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith."

Only those verbal agreements which by their terms are not to be performed within one year are void, while those which may be performed within the year are valid. Paige on Contracts, vol. 2, sec. 1292; 27 C. J. 178.

The obligations of the agreement here in question were, on the part of Stewart to bring about a discontinuance of dancing at the Moose Hall, and on the part of McKeon to pay $ 200 a month as long as it was kept closed for dancing, not to exceed three years. It can not be said that Stewart's obligation was within the statute. The agreement did not require him to keep the hall closed for dancing for three years, or for any length of time. The doubt arises only as to MeKeon's undertaking. He was to pay the $ 200 a month only so long as there was to be no dancing in the Moose Hall not to exceed three years. He was not required to pay the $ 200 per month for one year, three years or for any definite period of time, except three years were fixed as the maximum limit, if dancing in the hall should cease so long.

Now if dancing were resumed in the hall within a year, and it might have been,...