Opinion
No. 39026.
February 15, 1954.
1. Statute of frauds — affirmative defense — to be pleaded.
The statute of frauds is an affirmative defense which must be pleaded.
2. Statute of frauds — affirmative defense by demurrer.
The affirmative defense of statute of frauds cannot be invoked by demurrer against a bill unless the facts which justify such defense clearly appear in the bill of complaint.
3. Statute of frauds — affirmative defense by demurrer.
Where statute of frauds is set up by demurrer to bill of complaint, all facts necessary to sustain such demurrer must distinctly appear as such from complaint and allegations of complaint are not to be strictly construed against complainant.
4. Master and servant — oral contract of employment — divisible — performed within period of 15 months.
An oral contract of employment as manager of manufacturing plant for one year from specified date with provision for employment from year to year thereafter so long as services were satisfactory was divisible and provided definitely for employment for one year from specified date.
5. Statute of frauds — bill of complaint not demurrable — on ground — oral contract not to be performed in period of 15 months.
Bill of complaint alleging that "shortly prior" to specified date complainant entered into oral contract of employment as manager of manufacturing plant for one year from specified date with provision for employment from year to year thereafter could not be construed as using quoted words as meaning more than three months, and hence, with respect to first year of employment, complaint was not demurrable on ground that alleged contract was within the statute of frauds in that it was not to be performed within 15 months. Sec. 264(d), Code 1942.
Headnotes as approved by Arrington, J.
APPEAL from the chancery court of Amite County; F.D. HEWITT, Chancellor.
Gordon Gordon, Liberty; Maxwell Bramlette, Woodville, for appellant.
I. The contract between the appellant and appellee was such contract as could be fully performed within a period of fifteen months and, therefore, was not within the statute of frauds or unenforceable contracts. Allen v. Mutual Compress Co., 101 Ala. 574, 14 So. 362; Baltimore Breweries Co. v. Callahan, 82 Md. 106, 33 A. 460; Beissel v. Vermillion Farmers Elevator Co., 102 Minn. 229, 113 N.W. 575, 12 L.R.A. (N.S.) 403; Blake v. Voight, 134 N.Y. 69, 31 N.E. 256, 30 Am. St. 622; Brigham Co v. Carlisle, 78 Ala. 243, 246, 56 Am. Rep. 28; Buhl v. Stephens (C.C.), 84 Fed. 922; Bush v. Koll, 2 Colo. App. 48, 29 P. 919; Chevalier v. Lane's, Inc., 147 Tex. 106, 213 S.W.2d 530, 6 A.L.R. 2d 1045; Cole v. Singerly, 60 Md. 348; Columbia Pictures Corp. v. De Toth, 161 P.2d 217; Daigler v. Mitchell, 39 N.Y. Supp.2d 465; Dallas Hotel Co. v. Lackey (Tex.), 203 S.W.2d 557; Duff v. Snider, 54 Miss. 245; Echols v. New Orleans, J. G.N.R.R. Co., 52 Miss. 610; Ellicott v. Peterson's Exrs., 4 Md. 476; Fitzpatrick v. Michael, 177 Md. 248, 254, 9 A.2d 639; Golden Rod Mills v. Green (Tex.), 230 S.W. 1089; Hardison v. A.H. Belo Corp., 247 S.W.2d 167; Hartwell v. Young, 22 N.Y. Supp. 486, 67 Hun. 472; Hollywood Motion Picture Equip. Co. v. Furer, 16 Cal.2d 184, 105 P.2d 299, 12 Cal. Jur., Sec. 5 p. 858, 111 A.L.R. 1105, 49 Am. Jur., Sec. 25 p. 287; Home News, Inc. v. Goodman, 35 A.2d 442; Houghton v. Houghton, 14 Ind. 505, 77 Am. Dec. 69; Jackson v. I.C.R.R. Co., 76 Miss. 607, 24 So. 874; Kansas City Stock Yards Co. v. A. Reich Sons, 250 S.W.2d 692; Klickstein v. Neipris, 283 Mass. 91, 94, 185 N.E. 920; Lambur v. Yates (8 Cir.), 148 F.2d 137; Lewis v. Tapman, 90 Md. 294, 45 A. 459, 47 L.R.A. 385; Linden Park Garage, Inc. v. Capitol Laundry Co., 284 Mass. 454, 460, 187 N.E. 849; Lord v. Goldberg, 81 Cal. 596, 22 P. 1126, 15 Am. St. 82; McKelvy v. Choctaw Cotton Oil Co., 52 Okla. 81, 151 P. 414; McGrath Co. v. Marchant, 117 Md. 472, 479, 480, 83 A. 912, 914; McGuire v. Hutchinson, 240 Mo. App. 504, 210 S.W.2d 521; Mallett v. Lewis, 61 Miss. 105; Moore v. Smart, 171 Miss. 248, 157 So. 467; Nickerson v. President, etc., of Harvard College, 298 Mass. 484, 11 N.E.2d 444, 114 A.L.R. 414, 416, 1 Am. Jur., Rest., Contracts, Sec. 198(d), 49 Am. Jur., Secs. 24, 54 pp. 385, 411; Noa Spears Co. v. Inbau (Tex.), 186 S.W. 357; Phoenix Ins. Co. of Hartford v. Ireland, 9 Kan. App. 644, 58 P. 1024; Rainbolt v. East, 56 Ind. 538, 26 Am. Rep. 40; Rape v. M. O.R.R. Co., 136 Miss. 38, 100 So. 585, 35 A.L.R. 1422; Rhodes-Haverty Furn. Co. v. Frazier (Tex.), 55 S.E. 192; Riley v. Riley, 25 Conn. 154; Roberts v. Rockbotton, 7 Metc. 46; Roy P. Marble, Appt. v. Town of Clinton, 9 N.E.2d 522, 111 A.L.R. 1101; Russell v. Allerton, 108 N.Y. 288, 15 N.E. 391; Schuler v. Corl, 39 Cal.App. 195, 178 P. 535; Schuylkill Nav. Co. v. Moore (Pa.), 2 Whart. 477, 491; Shannon v. Jacobson, 262 Mass. 463, 465, 466, 160 N.E. 245; Smith v. Colin (N.Y.), 19 Hun. 234; Southerland v. Southerland's Admr. (Ky.), 5 Bush. 591; State ex rel. Place v. Bland, 353 Mo. 639, 183 S.W.2d 878; Steen v. Kirkpatrick, 84 Miss. 63, 36 So. 140; Swift v. Swift, 46 Cal. 266; Teichner v. Pope Mfg. Co., 125 Mich. 91, 83 N.W. 1031; Ward v. Hasbrouch, 169 N.Y. 407, 419, 62 N.E. 434; Sec. 264, Code 1942; Sec. 131, Justice Court Act; Sec. 31, Personal Property Law (as amended by Chap. 616, Laws 1933); Anno. 6 A.L.R. 1502; 35 Am. Jur. 463; 49 Am. Jur., Secs. 51, 58 pp. 409, 415; 27 C.J. pp. 174-186; 37 C.J.S., Secs. 55, 62, 65 pp. 562, 571; 56 C.J.S., Master and Servant, Sec. 33 p. 418; 18 R.C.L. 509; 25 R.C.L. 408; Bishop on Contracts, Sec. 1276; Vol. 1, Bishop on Married Women, Sec. 806; Bouvier's Law Dictionary, words "permanent employment"; Griffith's Miss. Chancery Practice (2d ed.), Sec. 288 pp. 271, et seq.; Vernon's Ann. Civ. Statute of Frauds, Subd. 5 Art. 3995; Vol. 1, Williston on Contracts, Sec. 503.
Fred A. Anderson, Jr., Walker J. Carney, Jr., Gloster; Breazeale, Sachse, Wilson Herbert, Baton Rouge, Louisiana, for appellee.
I. The contract between the appellant and appellee was an oral contract without written memorandum signed by the parties and according to the terms of the bill of complaint could not have been completed within fifteen months. Alkire v. Alkire Orchard Co., 79 W. Va. 526, 91 S.E. 384; Amburger v. Marvin (N.Y.), 4 E.D. Smith 393; Baker v. Codding, 44 N.Y. 787, 18 N.Y. Supp. 159; Berrien v. Southack, 26 N.Y. 932, 7 N.Y. Supp. 324; Bierman v. Simon, 110 N.Y. Supp. 267; Biest v. Versteeg Shoe Co., 97 Mo. App. 137, 70 S.W. 1081; Birch v. Earl of Liverpool (K.B. 1829), 9 Barn and C. 392; Blanck v. Littell (N.Y.), 9 Daly 268; Booker v. Heffner, 88 N.Y. Supp. 499, 95 App. Div. 84; Brookfield v. Drury College, 139 Mo. App. 339, 123 S.W. 86; Carroll v. Palmer Mfg. Co., 181 Mich. 280, 148 N.W. 390; Catlett v. Burke, 96 S.C. 363, 80 S.E. 610; Chadwick v. Morris Co., 170 Ill. App. 569; Chase v. Hinkley, 126 Wis. 75, 105 N.W. 230, 2 L.R.A. (N.S.) 738, 110 Am. St. 896, 5 Ann. Cas. 328; Clark County v. Howell, 21 Ind. App. 495, 52 N.W. 769; Comes v. Lamson, 16 Conn. 246; Davenport v. Gentry (Ky.), 9 B. Mon. 428; Davis v. Michigan Mut. L. Ins. Co., 127 Mich. 559, 86 N.W. 1021; Diamond v. Jacquith, 14 Ariz. 119, 125 P. 712, L.R.A. 1916D, 880; Dolan v. Miller, 179 A. 619; Draheim v. Evison, 112 Wis. 27, 87 N.W. 795; Duckett v. Pool, 33 S.C. 238, 11 S.E. 689; Emery v. Smith, 46 N.H. 151; Fanger v. Caspary, 84 N.Y. Supp. 410, 87 App. Div. 417; Gottlieb v. Gins, 169 N.Y. Supp. 599, 102 Misc. 686; Grant v. New Departure Mfg. Co., 85 Conn. 421, 83 A. 212; Gribble v. Raymond Van Praag Supply Co., 109 N.Y. Supp. 242, 124 App. Div. 829; Griffith v. Hammer, 73 Ind. App. 159, 126 N.E. 855; Gulfport Cotton Oil Fert. Mfg. Co. v. Reneau, 94 Miss. 904, 48 So. 292, 136 Am. St. 607; Hartwell v. Young, 22 N.Y. Supp. 468, 67 Hun. 472; Haynes v. Mason, 30 Ill. App. 85; Hearne v. Chadbourne, 65 Maine 302; Hinckley v. Southgate, 11 Vt. 428; Hillhouse v. Jennings, 60 S.C. 373, 38 S.E. 599; Horton v. Wollner, 71 Ala. 456; Izard v. Connecticut F. Ins. Co., 128 Ark. 433, 194 S.W. 1032; Jeffery v. Walker, 55 N.Y. 281, 25 N.Y. Supp. 161, 72 Hun. 628; Kansas City W. N.W.R. Co. v. Conlee, 43 Neb. 121, 61 N.W. 111; Kelly v. Terrell, 26 Ga. 551; Kleeman v. Collins (Ky.), 9 Bush. 469; Lally v. Crookston Lumber Co., 85 Minn. 257, 88 N.W. 846; Landman v. Gerstner, 174 N Y Supp. 202; Lee v. Hill, 87 Va. 497, 12 S.E. 1052, 24 Am. St. 666; Little v. Wilson (N.Y.), 4 E.D. Smith 422; McCammon v. Wheeler W. Sewing Mach. Co., 6 Ohio Dec. Reprint 1155; Magee v. Fish, 161 N.Y. Supp. 1057, 175 App. Div. 125; Mendelsohn v. Banov, 57 S.C. 147, 35 S.E. 499; Moody v. Jones (Tex.), 37 S.W. 379; Nones v. Homer (N.Y.), 2 Hilt. 116; Oak Leaf Mill Co. v. Cooper, 103 Ark. 79, 146 S.W. 130; Oddy v. James, 48 N.Y. 685; Odell v. Webendorfer, 64 N.Y. Supp. 451, 50 App. Div. 579; Odom v. Gulf and S.I.R.R. Co., 101 Miss. 642, 57 So. 626; O'Donnell v. Daily News Co., 119 Minn. 378, 138 N.W. 677; Palmer v. Marquette Pac. R.M. Co., 32 Mich. 274; Poole v. Hayes, 14 N.Y. 585; Rease v. Clarksville Cotton Oil Co. (Tex.), 248 S.W. 434; San Antonio Light Pub. Co. v. Moore, 46 Tex. App. 259[ 46 Tex.Crim. 259], 101 S.W. 867; School District v. Johnson, 26 Colo. App. 433, 143 P. 264; Scheuer v. Monash, 71 N.Y. Supp. 818, 35 Misc. 276; Scoggin v. Blackwell, 36 Ala. 351; Smith v. Theobald, 86 Ky. 141, 5 S.W. 394; Stovall v. Gardner (Tex.), 103 S.W. 405; Summerfield v. Sullivan, 113 N.Y. Supp. 552; Timberlake v. Thayer, 76 Miss. 76, 23 So. 767; Townsend v. Minford, 15 N.Y. 820, 1 N.Y. Supp. 565, 48 Hun. 617; Truskett v. Rice Bros. Live Stock Comm. Co. (Mo.), 180 S.W. 1048; Turnow v. Hockstadter (N.Y.), 7 Hun. 80; Union Savings Trust Co. v. Drumm, 88 Wn. 20, 152 P. 681; Vaughn v. De Wandler (N.Y.), 63 How. Pr. 378; Wanamaker v. Rhomer, 23 N.Y. Wkly. Dig. 60; Whitaker v. Davenport, 193 Miss. 523, 10 So.2d 202; Williams v. Garrison, 21 Ga. App. 44, 93 S.E. 510; Sec. 264, Code 1942; 27 A.L.R. 667; 114 A.L.R. 418; 27 C.J. 176.
II. The alleged contract was an indefinite one for an indefinite period of time and was clearly intended by the parties to be a permanent arrangement or one in which performance was not contemplated within a fifteen months period as required under the laws of the State of Mississippi. Biest v. Versteeg Shoe Co., supra; Birch v. Earl of Liverpool, supra; Firemen's Fund Ins. Co. v. Williams, 170 Miss. 190, 154 So. 545; Gerachi v. Sherwin-Williams, 156 Miss. 36, 125 So. 410; Green v. Hartford Fire Ins. Co., 157 Miss. 316, 128 So. 107, 69 A.L.R. 554; Mallett v. Lewis, 61 Miss. 106; Mayer v. Roberts, 46 Ark. 80, 55 Am. Rep. 567; Poole v. Johns-Manville Products Corp., 210 Miss. 528, 49 So.2d 891; Segal v. Rothschild Bros. Hat Co. (Miss.), 130 So. 312; Wagniere v. Dunnell, 29 R.I. 580, 73 A. 309; 27 C.J. 177; 37 C.J.S., Statute of Frauds, Sec. 62 p. 567; Brown on Statute of Frauds, Secs. 281, 281a.
III. Appellant has totally failed to make the necessary allegations in the bill of complaint to take the case at bar beyond the reach of a demurrer. Odom v. Gulf and S.I.R.R. Co., supra; Whitaker v. Davenport, supra.
Harold Pride Greer, appellant herein, filed his bill of complaint in the Chancery Court of Amite County, Mississippi, alleging that the Crawford Corporation, a Mississippi corporation, appellee, was indebted to him under the terms of an oral contract. The appellee filed a demurrer to the bill upon the grounds that the alleged contract was within the statute of frauds in that the contract could not be performed within the space of fifteen months. The court sustained the demurrer, and the appellant declining to plead further, the bill was dismissed, from which decree the appellant appeals.
The allegations of the bill which are pertinent to the consideration of the question before us are as follows:
"That shortly prior to June 1, 1949, W.H. Crawford, president of Crawford Corporation, then acting for and on behalf of said corporation, entered into a contract with your complainant to secure his services as manager of the manufacturing plant of the Crawford Corporation located at Gloster, Mississippi. That said contract was wholly verbal with notations of the contract being made in writing and under the terms of said contract the said complainant was to receive a year's salary of $8,400.00 and was to participate in the profits of your defendant at the following rate: * * *.
"That under the terms of said contract your complainant was employed for the term of one year beginning June 1, 1949, and ending May 31, 1950, with the understanding that if said manufacturing plant was efficiently managed and continued in operation that he would then be employed from year to year thereafter so long as his services were satisfactory.
"Your complainant would further respectfully show that he began his services under said contract on or about June 1, 1949 * * *. That his second year of employment with said defendant corporation began June 1, 1950, and would have expired May 31, 1951, but the said defendant notified your complainant on February 12, 1951, that his services were no longer needed and undertook to terminate said contract as will be shown by copy of letter hereto annexed. * * *."
Appellee's demurrer was based upon Sec. 264 (d), Code of 1942: "Certain Contracts to be in Writing. — An action shall not be brought whereby to charge a defendant or other party: * * * (d) Upon any agreement which is not to be performed within the space of fifteen months from the making thereof; * * * unless * * * the promise or agreement upon which such action may be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some person by him or her thereunto lawfully authorized in writing."
The appellee argues that the demurrer was properly sustained for the reason that the bill of complaint shows on its face that the contract could not be performed within the period of fifteen months; and that the allegations of the bill must be strictly construed against the appellant, his contention being that the word "shortly" could mean six months, four months, or three months and one day, which would bring the oral contract within the statute of frauds. We find no merit in these contentions.
(Hn 1) The statute of frauds is an affirmative defense which must be plead. In Griffith, Miss. Chancery Practice, 2d Ed., Sec. 301, it is stated: "* * * (Hn 2) The defense of the statute of frauds cannot be invoked by demurrer against a bill unless the facts justifying it clearly appear therefrom. Hence it is that ambiguity in the bill in that respect will not let it in by demurrer, and moreover in such a case the admissions made by the demurrer will, for all the purposes of the argument on the demurrer, be taken as bridging the statute, — contractual transactions between parties are presumed to be valid until the contrary is made to appear by facts."
(Hn 3) Further on affirmative defenses by demurrer, Sec. 300 states: "* * * Equivocal language subject to two constructions, and the like, will not suffice. And since such a demurrer is equivalent to an affirmative pleading, and is received sub modo as a substitute therefor, on the part of the defendant, it cannot be worked out by taking the bill strongest against the complainant. It must be remembered that in such a case the demurrer is a substitute for an affirmative pleading that otherwise the defendant himself would have to draft and to prefer, so that it follows that if the facts, and all the facts necessary, do not appear as facts and distinctly so from the bill, the demurrer on that ground will not hold. The defendant cannot work out a defense that he himself must affirmatively make by putting the burden thereof over on the complainant by seeking to take the complainant's averments strongest against the complainant, but the rule is rather the reverse, in that particular respect." Citing Taylor v. Twiner, 193 Miss. 410, 9 So.2d 644, White v. Turner, 197 Miss. 265, 19 So. 825, and others.
(Hn 4) It appears to us that this contract is divisible. (Hn 5) It further provides definitely for employment for one year from June 1, 1949, to May 31, 1950. It is alleged that the contract was made "shortly prior to June 1, 1949." On demurrer, under the authorities cited above, it cannot be assumed that the words "shortly prior" mean more than three months, therefore, it is obvious with respect to the first year of employment that the contract was one which could be performed within the space of fifteen months. Compare Poole v. Johns — Manville Products Corporation, 210 Miss. 528, 49 So.2d 891. Since a part of the relief prayed for was for an accounting of profits during the first year of employment, the demurrer should have been overruled.
Since this cause must be reversed, we do not deem it necessary to pass upon the second year of employment. This question should be determined by the facts on answer and proof.
Reversed and remanded.
McGehee, C.J., and Hall, Kyle, and Ethridge, JJ., concur.