Opinion
Decided November 7, 1934.
An oral contract for the sale of an interest in a business conducted on the land of the vendor is not a contract to transfer an interest in land where there is no evidence that such was the intention of the parties and hence is not within the statute of frauds. (P. L., c. 327, s. 1.) A contract to transfer shares in a corporation is not a contract for the transfer of an interest in land though the corporation may own real estate. Only those contracts which according to their terms cannot be performed within a year from their formation are within the second section of P. L., c. 327.
ASSUMPSIT, for breach of an oral contract of employment. A trial by jury resulted in a verdict for the plaintiff.
Prior to the contract here in dispute the plaintiff, who is a nephew of the defendant, was employed by a firm in Boston as a traveling salesman at $40 per week and expenses. The defendant is, and for many years has been, engaged in the wholesale fruit and produce business and the retail coal business in Dover.
In October, 1926, according to the plaintiff's version of the contract, the defendant told the plaintiff that he wanted him to come up to Dover and work for him since he was getting along in years and wished to retire within a year or so and turn the business over to his son Laurence and the plaintiff. In March, 1927, the defendant reiterated the statements made to the plaintiff the previous October, and offered him $25 per week, his board, room and washing, and a share in the business if he would enter his employment. The plaintiff accepted this offer and on May 1, 1927, came to work for the defendant. In August, 1928, the plaintiff inquired of the defendant regarding his share in the business and the defendant said he was planning to incorporate his business the following January and would then talk further with him regarding his share. In January, 1929, the defendant did incorporate his business and told the plaintiff that he could have 25 of the 100 shares of stock to be issued at that time. In November, 1929, the plaintiff asked for his shares but was told he could not have them without paying par value for them. Whereupon the plaintiff gave notice and on December 15, terminated his employment with the defendant.
The defendant admitted the employment of the plaintiff from May 1, 1927, to December 15, 1929, at $25 per week and his board, room and washing, but denied that he had ever promised to give the plaintiff any share in his business, although he did admit that he offered to sell him 25 shares of stock in November, 1929.
At the close of the plaintiff's evidence the defendant moved for a nonsuit "on the ground the contract as alleged by the plaintiff is within the Statute of Frauds and must be in writing." This motion was denied and the defendant excepted. At the close of all the evidence the defendant moved generally for a directed verdict which motion was also denied subject to exception.
Transferred by Young, J.
Conrad E. Snow and Leonard C. Hardwick (Mr. Snow orally), for the plaintiff.
Hughes Burns (Mr. Hughes orally), for the defendant.
The defendant contends that "the contract alleged to have been made in March, 1927, was within the Statute of Frauds, was not evidenced in writing, and therefore void," and that "the alleged contract in January, 1929, was in substitution of the first alleged contract, was not evidenced in writing, and therefore void." In support of these contentions the defendant argues that since he conducted his business on land which he owned, a promise to transfer a share in the business was a promise to transfer an interest in land, which, to be enforcible, must be in writing. P. L., c. 327, s. 1.
The fallacy in this argument lies in the assumption that a transfer of a share in the business necessitated the transfer of an interest in the land upon which the business was conducted. There is nothing in the record to indicate that the plaintiff, in contracting with the defendant for a share in the latter's business, had in mind anything more than an interest in the personal property used in connection therewith, its good will, and a share in the profits. That the defendant also regarded his land as separate from his business is clear since he testified that when he incorporated his "business" he transferred to the corporation only the personal property used in connection therewith, not the land upon which it was conducted. The jury, in finding a verdict for the plaintiff, must have found that the minds of the parties met in agreement upon a contract, and there is no evidence from which they could have found that the parties, in contracting with one another, had in mind the transfer of any interest in land. Under these circumstances the statute does not apply.
The second contention of the defendant, "that the alleged contract in January, 1929, was in substitution of the first alleged contract, was not evidenced in writing and therefore void," is equally without merit. The January contract was at most a contract to transfer shares in a corporation. Such shares are not land or any interest in land, even though the corporation may own real property. Champollion v. Corbin, 71 N.H. 78.
The defendant further argues that the contract was void because it was not to be performed within a year. P. L., c. 327, s. 2. It has long been well established that this section of the statute renders unenforcible only those contracts which cannot be performed according to their terms within a year from the time of their inception. Williston, Contracts, s. 495; Blanding v. Sargent, 33 N.H. 239, 245; Gault, Brown Co. v. Brown, 48 N.H. 183, 189; Spaulding v. Mayo, 81 N.H. 85, 87; McCrillis v. Company, 85 N.H. 165. Clearly the contract as testified to by the plaintiff not only could have been performed within a year, but also the plaintiff, when he made the agreement, anticipated that it would be performed within that time.
Various exceptions to the admission and exclusion of evidence and to portions of the argument of plaintiff's counsel to the jury were not argued and have not been considered.
Judgment on the verdict.
All concurred.