E. T., Va. & Ga. R. R. Co. v. Staub

• Citation: 75 Tenn. 397
• Parties: E. T., VA. & GA. R. R. CO. v. JACOB STAUB.
• Decision Date: 30 September 1881
• Court: Tennessee Supreme Court

75 Tenn. 397

E. T., VA. & GA. R. R. CO.

v.JACOB STAUB.

Supreme Court of Tennessee.

September Term, 1881.

FROM KNOX.

Appeal in error from the Circuit Court of Knox county. S. A. RODGERS, J.

J. T. & J. K. SHIELDS and GEORGE BROWN for Railroad.

L. A. GRATZ and HOUK & GIBSON for Staub.

MCFARLAND, J., delivered the opinion of the court.

Staub, the plaintiff below, obtained a verdict and judgment for $9,400. A new trial was refused, and the defendant excepted and appealed in error.

It is conceded that the recovery was upon the first and fourth counts in the declaration, which state the cause of action substantially as follows, to-wit: That the plaintiff was in the employ of the company as a locomotive engineer, and in December, 1874, while in the discharge of his duties, received serious injuries in a collision between his engine and another train, by reason of the defendant's negligence; that within twelve months--the period limited for bringing such actions--he commenced his action to recover damages for the injuries; that, subsequently, an agreement, by way of compromise, was entered into, by which in consideration of the plaintiff's agreeing to dismiss his suit, the defendant agreed to pay the costs and the plaintiff's attorney's fees and physician's bills, and furthermore agreed to retain the plaintiff in the company's employ, he, the plaintiff, laboring when in his own opinion he was able to do so, and performing only such services as, in his disabled condition, he might be able to perform, and the company agreed to pay the plaintiff a certain specified sum per day--the regular wages paid to machinists--whether the plaintiff labored or not. This contract was to continue so long as the plaintiff's disability, by reason of the injury referred to, should continue. The recovery was for an alleged breach of this contract.

The first ground of error assigned for a reversal is the refusal of the circuit judge to hold the above contract void, under the statute of frauds, except only for the period of twelve months from its date. The statute provides: “That no action shall be brought * * upon any agreement or contract which is not to be performed within the space of one year from the making thereof”: Code, sec. 1758, sub-sec. 5. Whatever might be our understanding from the reading of this statute, were its construction an open question, it is clear that the authorities fully sustain the holding of the court below. According to the construction that has been given to this statute, a contract is not within its term simply because it may continue longer than one year--as, for instance, a promise to pay a certain sum during the promisee's life. This may be fully performed within a year, because the party, where life is involved, may die within that period. The statute “only extends to contracts * * in which, by express appointment or understanding of the parties, the thing is not to be performed within a year”: Leinau v. Smar?? 11 Hum., 308;Deaton v. Tennessee Coal and Railroad Company, 12 Heis., 650; Brown on Statute of Frauds, sec. 273 et seq. Although the contract in this case was one that might continue longer than one year, yet, according to the understanding of the parties, it was to be performed at once and might be fully completed within one year, as by its terms it was to terminate whenever the plaintiff's disabilities by reason of the injuries received, should cease, and it would of course terminate at the plaintiff's death, either of which events might occur within one year. The first event within the year was no doubt contemplated.

It is next argued, that, in any event, the plaintiff could only recover for wages that had accrued by the terms of the contract and which remained unpaid at the commencement of the action, and this for several reasons. First, because the breach of the contract assigned in the declaration shows that the action was only brought for such wages; that the declaration does not aver a total breach and repudiation of the contract, but only a failure to pay the wages due. The declaration avers that the plaintiff had performed, and offerred to perform all of his undertakings in the premises, and that the defendant wholly failed and refused to discharge and comply with its part of the obligations by paying the plaintiff the wages agreed upon, his physician's bills, expense, etc. The objection is, that the declaration does not in terms aver that the defendant refused to permit the plaintiff to work under the contract, or that the plaintiff was discharged, or anything equivalent to a total repudiation of the contract by the defendant.

The same certainty is not required in assigning the breach that is required in setting forth the contract. “All that can be required is that the breach complained of be substantially set forth and substantially proved”: Michie v. The Governor, 4 Hum., 486. This is especially so upon a contract like this. It would be different in acting upon contracts of a different character--as, for instance, upon a lease containing separate covenants; there a breach of each covenant for which a recovery is claimed should be assigned: Eastham v. Crowder, 10 Hum., 194. The breach assigned here is the failure and refusal of the defendant to pay the several sums agreed to be paid. This was the whole of the defendant's part of the obligation--all it promised to perform. The declaration was either intended to be for the wages due for the time that had elapsed, or it was intended to recover damages for the entire breach. Looking to the entire statements of the counts in question, we think they may well be construed--as they were by the judge below--as intended to recover for the total breach and repudiation of the contract by the defendant. And this, even conceding for the argument that, in a case where the defendant repudiates the contract and the plaintiff has ceased to render the service, the latter may nevertheless, at his election, sue to recover full damages for the breach, or sue from time to time to recover wages as the same would become due by the terms of the contract--a question, however, hereafter to be considered. The counts in question show with reasonable certainty that both parties were not treating the contract as in force, the defendant simply omitting to make payments; but while the plaintiff was offering to perform his part of the agreement, the defendant had repudiated it. The cause was tried upon this theory, and we do not see that the defendant was surprised or misled in this respect.

Second, it is insisted that the charge of the judge below was erroneous in that the jury were in effect instructed that a mere failure and refusal to pay the sums agreed to be paid might be regarded as sufficient to authorize a finding that the defendant had in effect repudiated the entire contract and dismissed the plaintiff...