As KwangSung points out, the Alabama Supreme Court has determined that a plaintiff's claim of an oral contract for employment for four years is void under the statute of frauds. See Trum v. Melvin Pierce Marine Coating, Inc., 562 So.2d 235, 236 (Ala.1990). An oral modification for a four year period, therefore, would violate the statute of frauds, and is not enforceable.
"Goodyear Tire &Rubber Co. v. Washington, 719 So.2d 774, 776 (Ala. 1998). See also Trum v. Melvin Pierce Marine Coating, Inc., 562 So.2d 235, 237 (Ala. 1990) ('[I]n order for a promise to constitute a fraudulent misrepresentation, there must have been at the time the promise was made an intention not to perform, and such a promise must have been made with the intent to deceive.');
Goodyear Tire Rubber Co. v. Washington, 719 So.2d 774, 776 (Ala. 1998). See also Trum v. Melvin Pierce Marine Coating, Inc., 562 So.2d 235, 237 (Ala. 1990) ("[I]n order for a promise to constitute a fraudulent misrepresentation, there must have been at the time the promise was made an intention not to perform, and such a promise must have been made with the intent to deceive."); Clanton v. Bains Oil Co., 417 So.2d 149, 151 (Ala. 1982) ("A promise, to constitute fraud, must be made with the intent not to perform it."). Evidence of consistent, but unfulfilled, promises can in some cases amount to substantial evidence of an intent to deceive.
In this case, therefore, the Statute of Frauds does not operate to negate the element of reliance in Shelby's fraudulent-misrepresentation claim. Cf. Trum v. Melvin Pierce Marine Coating, Inc., 562 So.2d 235 (Ala. 1990) (Statute of Frauds precluded a breach-of-contract claim based on alleged breach of an oral, four-year employment contract; nevertheless, a promissory-fraud claim was viable, because the evidence indicated that the defendant never intended to keep the promise). Thus, Shelby presented evidence sufficient to overcome the defendants' motion for a JML on the fraudulent-misrepresentation claim.
Dr. Standeffer testified that he followed the defendants' advice, which was wrong, not that the defendants failed to do something that could not be done in a year. I would not hold that a duty created by contract would not be subject to a Statute of Frauds defense in a negligence action based upon a breach of that duty. ( Trum v. Melvin Pierce Marine Coating, Inc., 562 So.2d 235 (Ala. 1990), did not address the issue whether a fraudulent misrepresentation regarding a contract that, under its terms, was not capable of being performed in one year was subject to the Statute of Frauds.) I do not believe that Pickard v. Turner, 592 So.2d 1016 (Ala. 1992), which involved a legal malpractice action, addressed the issue whether the Statute of Frauds is a defense to a negligence action based upon a breach of duty created by contract.
5. Thus, the 50-year employment contract is not capable of performance within 1 year. For similar reasons, an oral employment contract "until age 65" would be void under the statute of frauds. See, Trum v. Melvin Pierce Marine Coating, 562 So.2d 235 (Ala. 1990); Harris v. Arkansas Book Co., 287 Ark. 353, 700 S.W.2d 41 (1985); Burton v. Atomic Workers Fed. Cr. Union, 119 Idaho 17, 803 P.2d 518 (1990). The district court determined that the contract between Rath and SRI was to last either until age 65 or for 50 years.
To be fraudulent, a promise to perform in the future must be made with a present intent not to perform. Cahaba Seafood, Inc. v. Central Bank of the South, 567 So.2d 1304 (Ala. 1990); Koch v. State Farm Fire Cas. Co., 565 So.2d 226 (Ala. 1990); Trum v. Melvin Pierce Marine Coating, Inc., 562 So.2d 235 (Ala. 1990); H.C. Schmieding Produce Co. v. Cagle, 529 So.2d 243 (Ala. 1988); Farmers Merchants Bank v. Climate Masters Electrical Co., 514 So.2d 1003 (Ala. 1987); and Elrod v. Ford, 489 So.2d 534 (Ala. 1986). The evidence submitted by B.K.W., if believed by the jury, shows a pattern of initial promises coupled with later repudiations. That pattern, and T E's denial of the promises, presents at least circumstantial evidence of intent not to perform.
" Goodyear Tire Rubber Co. v. Washington, 719 So.2d 774, 776 (Ala. 1998). See also Trum v. Melvin Pierce Marine Coating, Inc., 562 So.2d 235, 237 (Ala. 1990) (`[I]n order for a promise to constitute a fraudulent misrepresentation, there must have been at the time the promise was made an intention not to perform, and such a promise must have been made with the intent to deceive.'); Clanton v. Bains Oil Co., All So.2d 149, 151 (Ala. 1982) (`A promise, to constitute fraud, must be made with the intent not to perform it.'). Evidence of consistent, but unfulfilled, promises can in some cases amount to substantial evidence of an intent to deceive.