Williamson v. Stafford, Etc.

• Decision Date: 27 November 1945
• Citation: 301 Ky. 59
• Parties: Williamson v. Stafford et al. Same v. Fetters et al.
• Court: United States State Supreme Court — District of Kentucky

301 Ky. 59

Williamson v. Stafford et al.

Same v. Fetters et al.

Court of Appeals of Kentucky.

November 27, 1945.

1. Pleading. — Where petitions in actions for breach of contract were silent as to whether contracts were oral or written, presumption that contracts were oral would prevail.

2. Frauds, Statute of. — Where petition shows contract sued upon to be oral, defendant may avail himself of statute of frauds by denying the contract in his answer. KRS 371.010(7).

3. Frauds, Statute of. — Where contract sued on was presumed to be oral because of failure of petition to allege otherwise and defendant denied the contract, denial raised issue of validity of contract and defendant could rely on statute of frauds in support of her position on such issue without necessity of specially pleading the statute as a defense. KRS 371.010(7).

4. Frauds, Statute of. — Generally, if oral contract may be performed within a year from the making thereof, inhibition of statute of frauds does not apply, although performance may have extended over a greater period of time. KRS 371.010(7).

5. Frauds, Statute of. — When it is contemplated by the parties to oral contract that contract would not and could not be performed within one year, even though it was possible of performance within that time, contract comes within the statute of frauds. KRS 371.010(7).

6. Frauds, Statute of. — Where plaintiffs and defendant, in contracting orally for the sawing of logs on land owned by defendant, contemplated that sawing operations would take more than one year to complete, contracts were within inhibition of statute of frauds. KRS 371.010(7).

Appeal from Lewis Circuit Court.

Chat Chancellor, A.E. Funk, and Sarah Layman for appellant.

Charles Reidinger for appellees.

Before Harvey Parker, Judge.

OPINION OF THE COURT BY VAN SANT, COMMISSIONER.

Reversing.

Appellees in each of the above styled cases seek to recover of appellant damages for breach of contract. The petition in each case alleges that appellant, through her husband agent, had entered into a contract with appellees, whereby the latter agreed to saw all of the timber on certain boundaries of land owned by appellant in Lewis County. Appellees were to move saw mills owned by them onto the properties and commence operations when appellant delivered the logs to the mills. Appellees were to receive the sum of $9 per 1000 board feet of timber sawed. Appellant by answer in each case denied each and every material allegation of the petition. Trial was had upon the issues thus joined, and at the conclusion of the evidence, appellant's motion for a directed verdict in her favor was overruled in each case. The jury rendered a verdict for appellees in each case in the sum of $300. Judgments were entered accordingly, from which appeals have been prayed in this Court.

Appellant contends that the contracts involved were oral contracts, not to be performed within a year, and therefore unenforcible, because they are inhibited by the Statute of Frauds, KRS 371.010, which, in so far as pertinent, reads:

"No action shall be brought to charge any person:

* * * * *

"(7) Upon any agreement that is not to be performed within one year from the making thereof, unless the promise, contract, agreement, representation, assurance or ratification, or some memorandum or note thereof, be in writing and signed by the party to be charged therewith, or by his authorized agent. * * *"

Appellees contend that the contracts could have been performed within one year from the making thereof, for which reason they were not within the purview of KRS 371.010, supra; and, if wrong in this contention, that appellant may not rely upon the Statute of Frauds, because she did not specifically plead it as a defense to the actions. We will consider the contentions in reverse order.

The petitions were silent as to whether the contracts were oral or written; therefore, under the rule long since adopted and continuously adhered to by this Court, the presumption that they were oral will prevail. Todd v. Finley, 166 Ky. 546, 179 S.W. 455; Kash v. United Star Oil Co., 192 Ky. 422, 233 S.W. 898; Dysart v. Dawkins Log & Mill Co., 222 Ky. 415, 300 S.W. 906. As early as 1818, this Court held that, if the petition shows a contract to be verbal, the defendant may avail himself of the Statute of Frauds by denying the contract in his answer. Talbot v. Bowen, 8 Ky. 436, 1 A.K. Marsh. 436, 10 Am. Dec. 747. That rule has been adhered to consistently, and without exception, in later decisions of this Court. Hocker v. Gentry, 60 Ky. 463, 3 Metc. 463; Fowler v. Lewis, 10 Ky. 443, 3 A.K. Marsh. 443; Brown v. East, 21 Ky. 405, 5 T.B. Mon. 405; Johnson v. Broughton, 183 Ky. 628, 210 S.W. 455; Cumberland & Manchester R. Co. v. Posey, 196 Ky. 379, 244 S.W. 770; Klein v. Liverpool & London & Globe Ins. Co., 57 S.W. 250, 22 Ky. Law Rep. 301; Howard's Adm'r v. Snyder, 9 Ky. Law Rep. 358; Gaines v. Fitch, 14 Ky. Law Rep. 620; Nugent v. Humpich, 231 Ky. 122, 21 S.W. 2d 153. The precise question was not raised in Smith v. Fah, 54 Ky. 443, 15 B. Mon. 443, cited by appellees; but there is nothing contained in that opinion which militates against the rule. Albro v. Satchwell, 7 Ky. Op. 348, is the sole decision of this Court that does not follow the rule above recited. Since, on the point in question, it is in conflict with all other decisions rendered both before and after its publication, it is overruled. The authorities in foreign jurisdictions are in conflict on the subject; some holding that the Statute must be pleaded specifically, whilst others hold that a general denial raises the issue of the validity of the contract, in defense of which the Statute of Frauds may be relied upon. The courts of Kentucky definitely are aligned with those states adhering to the latter rule.

In construing the Statute of Frauds, the general rule is that, if a contract may be performed within a year from the making of it, the inhibition of the Statute does not apply, although its performance may have extended over a greater period of time. Bullock v. Falmouth & C.H. Turnpike Road Co., 85 Ky. 184, 3 S.W. 129, 8 Ky. Law Rep. 835; Yellow Poplar Lumber Co. v. Rule, 106 Ky. 455, 50 S.W. 685, 20 Ky. Law Rep. 2006; Owensboro Shovel & Tool Co. v. Moore, 154 Ky. 431, 157 S.W. 1121; Swain v. Harmount & Woolf Tie Co., 226 Ky. 823, 11 S. W. 2d 940. For other cases, see 9 Ky. Dig., Frauds, Statute of, key 49.

But there is a well-recognized exception to the rule above recited, and that is that when it was contemplated by the parties that the contract would not, and could not, be performed within the year, even though it was possible of performance within that time, it comes within the inhibition of the Statute. Cumberland & Manchester R. Co. v. Posey, supra; East Tennessee Tel. Co. v. Paris Electric Co., 156 Ky. 762, 162 S.W. 530, Ann. Cas. 1915C, 543; Kentucky...