Troy Fertilizer Co. v. Logan

• Decision Date: 06 January 1893
• Citation: 96 Ala. 619,12 So. 712
• Parties: TROY FERTILIZER CO. v. LOGAN.
• Court: Alabama Supreme Court

12 So. 712

96 Ala. 619

TROY FERTILIZER CO. v. LOGAN.

Supreme Court of Alabama

January 6, 1893

Appeal from circuit court, Pike county; John P. Hubbard, Judge.

Action by S. H. Logan against the Troy Fertilizer Company to recover for work and labor performed. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Gardner & Wiley, for appellant.

Parks &amp Gamble, for appellee.

COLEMAN J.

The suit is in assumpsit, and brought by appellee. The common counts for work and labor performed were joined with a count upon a special contract. The contested questions of law arose under the count upon the special contract. The pleas of the defendant as they appear in the record are: (1) Tender; (2) that the contract was void under the statute of frauds because it was not to be performed within a year from the making thereof, and was not in writing; (3) the voluntary abandonment of the contract by plaintiff, without the fault of the defendant, and the abandonment on the 5th of October 1888. The general issue was not pleaded. The plea of tender was in legal form, and fully sustained by the proof as to the common counts. If the plaintiff was entitled to recover upon the special contract, the amount tendered was not sufficient to satisfy the plaintiff's claim. The writing relied upon as evidencing the agreement of the parties is in the form of a letter addressed to plaintiff. Section 1732 of the Code provides that "every agreement which by its terms is not to be performed within one year from the making thereof is void, unless such agreement, or some note or memorandum expressing the consideration, is in writing, and subscribed by the party to be charged therewith, or some other person by him thereunto lawfully authorized in writing." The letter was as follows: "Mr. S. H. Logan, c/o Southern Cotton Oil Co., Savannah, Ga.-Dear Sir: Since reaching home we have decided to accept your proposition, viz.: $100.00 per month, for 12 mos., commencing not later than the 15th July possibly the 1st of July; the date to be fixed by us. We think now we will be ready to use you by the latter date, but don't like to place ourselves in a position to take you until we can use you. We think you will be pleased with the change. Please answer at once. Yours, truly, O. C. Wiley, Prest." The evidence showed that the letter was written by Wiley, the president of the defendant company, at the instance and request of the general superintendent and manager, who had power to contract for the services of the plaintiff. We conclude from the evidence that the letter was dated the latter part of May, 1888. No question is made as to the authority of the president, Wiley, to make such a contract, nor that, if binding at all, it is the obligation of Wiley individually, and not of the company. The question is upon the sufficiency of the instrument itself, to take the contract out of the influence of the statute of frauds. The proof shows that, after the receipt of the letter, the plaintiff went to Troy, (the place where the company carried on its business,) and on the 24th day of June, 1888, was put to work by the general manager. On the part of the plaintiff the proof tended to show that he continued in defendant's employment, as foreman of defendant's cotton-seed oil mill, until about the 6th day of October, 1888, when the company's works were burned down, and shortly thereafter he was asked to resign, and, upon his refusal, he was discharged. The defendant offered in evidence facts tending to show that plaintiff did not perform his duties properly as a manager, and was lacking in skill. The court sustained an objection to this evidence. There...