Wagniere v. Dunnell

• Decision Date: 29 June 1909
• Citation: 29 R.I. 580,73 A. 309
• Parties: WAGNIERE v. DUNNELL et al.
• Court: Rhode Island Supreme Court

73 A. 309

29 R.I. 580

WAGNIERE

v. DUNNELL et al.

Supreme Court of Rhode Island.

June 29, 1909.

Exceptions from Superior Court, Kent County; Darius Baker, Judge.

Action by Gustave Wagniere against William W. Dunnell and others. Verdict for defendants, and plaintiff brings exceptions. Overruled.

Patrick H. Quinn, for plaintiff.

Gardner, Pirce & Thornley (William W. Moss, of counsel), for defendants.

PARKHURST, J. The plaintiff brought suit in assumpsit, claiming damages for breach of an agreement which was as follows, viz.: "February 9th, 1906. Mr. Gustave Wagniere—Dear Sir: Understanding that you will give me your best ability as a finisher of cotton and silk or all silk goods especially, but of any other grade of goods within your knowledge and ability, I hereby agree to employ you at a compensation of fifty (50) dollars per week for three (3) years from the date hereof, or for so much of such three (3) years as your results show the ability that you now claim to be able to give me. Yours truly, Wm. Wanton Dunnell. Accepted: G. Wagniere. In presence of: Dudleigh C. Collins." After hearing all the testimony offered by both parties, before a jury, the superior court, upon defendant's motion, directed the jury to return a verdict for the defendant, upon the ground that "the contract sued upon was such as to bring it within the statute of frauds, and that it was not sufficiently expressed in writing to render the contract enforceable at law." This is the language of the exception, and the only exception taken by the defendant in his bill of exceptions, and is quoted therefrom, so that the only questions before this court are: (1) Is this contract within the statute of frauds? (2) Is it or not sufficiently expressed to be enforceable at law?

It is plainly an "agreement which is not to be performed within one year from the making thereof," under Court Practice Act 1905, § 226, cl. 5, which reads as follows: "Sec. 226. No action shall be brought: * * * Fifth. Whereby to charge any person upon any agreement which is not to be performed within the space of one year from the making thereof—unless the promise or agreement upon which such action shall be brought, or some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person by him thereunto lawfully authorized." It is established by the great weight of authority that a contract for a definite term longer than a year is not excluded from the operation of the statute of frauds because it contains a provision enabling either party to put an end to the contract within a year; the reasoning of the courts being that the rescission of a contract is not the performance of it. In re Pentreguinea Fuel Co., 4 De G., F. & J. 511; Birch v. Earl of Liverpool, 9 Barn. & C. 392; Roberts v. Tucker, 3 Exch. 632, at 640; Dobson v. Collis, 1 Hurl. & N. 81; Wilson v. Ray, 13 Ind. 1; Mallett v. Lewis, 61 Miss. 105; Meyer v. Roberts, 46 Ark. 80, 55 Am. Rep. 567; Biest v. Versteeg Shoe Co., 97 Mo. App. 137, 70 S. W. 1081; Browne. Stat, of Frauds, & 282; 20 Cyc. 208. In Dobson v. Collis, supra, the plaintiff's case was that it had been agreed between him and the defendants that be should serve the defendants and be retained by them in the capacity of a traveler until the 1st day of September, 1855, and for a year thereafter, unless the said employment were determined by three months' notice given by the plaintiff or defendants, respectively; that the plaintiff had entered into service of the defendants, etc., but had been dismissed by the defendants before September 1, 1855. The contract was oral, and was held to be within the statute of frauds as a contract not to be performed within a year, although it was defeasible within a year. Pollock, C. B., says: "A contract which by its general terms is not to be performed within the year is not taken out of the statute because it may be defeated on a given event. * * * A lease for five years, subject to a defeasance on the happening of a certain event, does not cease to be a lease for five years because it may be defeated at the end of the first year." In Biest v. Versteeg Shoe Company, supra, the plaintiff, by a written contract dated February 5, 1900, was employed as a salesman for the defendant "in the territory agreed upon (a list of these towns is hereto attached)," for a term of one year commencing April 1, 1900. It was provided in this contract that, if the plaintiff wished to discontinue the contract on October 1. 1900, he could do so by giving the defendant notice on August 1, 1900. No written list of towns was ever drawn up to go with this contract. It is held that the contract was within the statute of frauds as one not to be performed within a year, in spite of the stipulation as to discontinuance by notice, and that the memorandum was not sufficient to satisfy the statute. The court says: "Performance as used in the statute is construed to mean full and complete performance according to the terms of the agreement. * * * Most cases * * * hold a contract to render services for more than a year to be within the intention and force of the statute, notwithstanding one or both of the parties may have the option of ending it by notice in a year, because full performance cannot be rendered in a year consistently with the understanding of the parties."

In the citation from Browne on the Statute of Frauds, the rule is stated as follows (section 282): "Thus a contract of hiring for more than a year is within the statute, although it be stipulated that either party may withdraw from the contract before the expiration of a year." Then, after quoting some of the above cases, the learned author proceeds: "In such cases as those just cited, it cannot be said that the agreement would be fully performed when one party withdrew from the contract of hiring. * * * We should rather say that in such event the performance of the agreement according to its terms would be frustrated." It is clear that the parties intended that this agreement should run for three years, and that it could be terminated before the end of that time only upon breach by one party or the other. It could not be performed in accordance with its terms in less than three years, and if brought to an end sooner it must be an untimely end by breach and not by performance, or by the exercise of an implied option reserved to the defendant in case results should not "show the ability that you now claim to be able to give." As stated in Browne on the Statute of Frauds, p. 360, § 273: "The statute * * * means to include any agreement which by a fair and reasonable interpretation of the terms used by the parties, and in view of all the circumstances existing at the time, does not admit of performance, according to its language and intention, within a year from the time of its making." The contract involved in this ease must, then, within the purview of the statute of frauds, be a contract not to be performed within a year, and is therefore unenforceable unless evidence by a memorandum sufficient to satisfy the requirements of the statute as construed by recognized authorities.

This raises the question, then, whether the letter in this case, signed by the defendant and accepted by the plaintiff, is a sufficient memorandum. It is well settled that the memorandum must contain all the material substantive terms of the contract, so that it is not necessary to resort to oral testimony to supply one or more of such terms and to make it complete and definite. This rule is approved in the following cas...