Opinion
No. 7007.
December 15, 1951. Rehearing Denied January 21, 1952.
E. C. Hamlin and C.M. Wantuck, Springfield, for appellant.
Neale, Newman, Bradshaw, Freeman Neale, Ben M. Neale and Charles F. Newman, Springfield, for respondent.
Appellant was plaintiff, and respondent was defendant in the trial court, and we will so designate them in this case.
The petition was first filed in the Circuit Court of Dade County, and, upon plaintiff's application for change of venue, the case was transferred to the Circuit court of Greene County. There the case was tried before a jury. At the end of plaintiff's evidence, the defendant filed a motion for a directed verdict and, upon the trial judge's indication that it would be sustained, the plaintiff took an involuntary nonsuit, with leave to set same aside. Briefly stated, the allegations of the petition, as gleaned from the transcript, are as follows:
Plaintiff therein alleged that, on or about May 6, 1949, defendant's president, Benton Wilson, agreed with plaintiff that defendant would employ her for a period of one year at a starting salary of $150 per month, and would increase her salary during the year, so that her total salary would be equal to $2,100 per year within the year. She alleged that the Board of Directors of defendant corporation agreed to such employment of plaintiff and that she began working for defendant on May 11, 1949, and plaintiff, thereupon and, at the suggestion of defendant, declined here employment as a teacher (which she had been offered in the public school system for one year).
Plaintiff further alleged that on June 11, 1949, defendant discharged plaintiff, without cause, to enable employment of a relative, and that she at all times, was ready, able and willing to perform all of her duties for defendant during such alleged employment for a year. She alleged that she was thereafter unable to secure employment as a teacher. She asked for actual damages in the sum of $2,100, and for punitive damages of $2,000 in addition. On May 12, 1950, plaintiff filed here application for change of venue, and on June 10, 1950, the case was ordered transferred to the circuit Court of Greene County.
In its answer, filed November 17, 1950, defendant denied that, on May 6, 1949, Benton Wilson, as president of defendant bank, agreed to employ plaintiff in its bank for a period of one year. Defendant further denied that at said time plaintiff had accepted a teaching position, and denied that plaintiff had made such an announcement to Benton Wilson or to defendant's Board of Directors; and also denied that plaintiff gave up her teaching position at defendant's suggestion. Said answer further alleged that plaintiff was employed on trial for one month, and alleged that plaintiff's work proved unsatisfactory and that she was discharged on that account and was so notified in advance. Defendant denied that plaintiff's discharge was willful, wanton or malicious.
The answer further alleged that plaintiff's alleged cause of action was barred under Section 3354, RSMo 1939, and that the claim of plaintiff did not bind the bank, since plaintiff's alleged contract was not presented to the Board of Directors of defendant.
The first alleged error of the trial court is that said court improperly indicated to plaintiff, at the conclusion of plaintiff's evidence, that it would sustain defendant's motion for a directed verdict.
Under paragraph 5 of plaintiff's Points and Authorities, appears the following: "While nonsuits are not mentioned in the new civil code, dismissals both voluntary and involuntary are continued; and an involuntary dismissal under the new civil code is the same as the involuntary nonsuit under the prior practice, the nomenclature only being changed."
In supposed supported of this statement, plaintiff cites Carr, Mo.Civil Proc. Vol 1, Sec. 802, p. 843. Being rather curious as to what Mr. Carr was talking about, the writer examined Section 802 of the 1st Volume of Carr, Mo.Civil Proc., cited by plaintiff. Mr. Carr was there writing solely about the effect upon counterclaims and cross-complaints of the voluntary or involuntary dismissal of the main suit, and the reference made by plaintiff is of no value.
The second assignment of alleged error of the trial court, is as follows: "The Court erred in overruling plaintiff's motion to set aside the involuntary nonsuit taken in the case."
The third assignment of alleged error of the trial court, is as follows: "The Court erred in not overruling defendant's motion for a directed verdict."
The second and third assignments of alleged error of the trial court involve the question of plaintiff's right to maintain her suit at all, and those assignments will be considered together.
Defendant cites RSMo 1949, § 432.010, V.A.M.S., Section 3354, RSMo 1939 and contends that plaintiff's action is barred thereby. So far as applicable to this action, those sections of the 1949 and 1939 statutes provide as follows: "No action shall be brought to charge * * * any person upon any agreement made in consideration of marriage, or upon any contract made for the sale of lands, tenements, hereditaments, or an interest in or concerning them, or any lease thereof, for a longer time than one year, or upon any agreement that is not to be performed within one year from the making thereof, unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized".
Plaintiff contends that "The Court erred in indicating to plaintiff at the conclusion of plaintiff's evidence that it would sustain defendant's motion for a directed verdict."
The alleged contract between plaintiff and the president of the bank was oral, and was alleged in the petition (as set out in the transcript) to have been executed on May 6, 1949, and plaintiff alleged in the same petition that she did not commence work under such alleged contract until May 11, 1949. In Sharp v. Rhiel, 55 Mo. 97, loc. cit. 99, Judge Adams said: "The state of frauds is, that no action can be maintained on a contract not in writing, which cannot be performed within one year from the time of making it. (Wagn. Stat. 656, Sec. 5.) There must be some note or memorandum in writing signed by the party to be charged. The time commences from the making of the contract, and not from the time the performance is to commence."
In Keller v. Mayer Fertilizer Company, 153 Mo.App. 120, 132 S.W. 314, 315, Judge Nortoni of the St. Louis Court of Appeals, said: "Our statute of frauds (Section 2783, Rev.St. 1909 section 3418, Ann.St. 1906) provides that no action shall be brought to charge any person upon an agreement that is not to be performed within one year from the making thereof, unless the agreement upon which the action shall be brought or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized."
We have compared Section 2783, RSMo 1909, with our present statute, and the portion thereof quoted by Judge Nortoni is identical with the portion of R.S. 1949, 432.010, V.A.M.S., which we have quoted above. In the case last above cited, the counterclaim relied on by appellant therein was based on an oral contract executed November 21, 1907, and operation thereon commenced the next day.
The case of Truitt v. Rothschild-Greenfield Co., Mo.App., 32 S.W.2d 770, was quite like the case at bar, so far as appellant's right to recover on the oral contract for one year is concerned; but the judgment of the trial court holding that appellant therein was entitled to recover nothing for the time actually spent in respondent's service was the real issue in that case.
The trial court there had first held that plaintiff therein was not entitled to recover anything for the time spent by her, and the trial court had granted her a new trial. The action of the trial court in that respect was affirmed. Judge Haid therein said: "It is undoubtedly true, as defendant asserts, that a contract made for one year, but the performance of which is to be begun at, and date from, some time subsequent to the date the contract was entered into, is one not to be wholly performed within one year from the time of making it, and, therefore, must be in writing under the terms of the statute of frauds, otherwise the same is not enforceable."
The case before us is not an action to recover for the time actually spent by plaintiff in defendant's bank. It is an action for a year's employment and, so far as the record shows, plaintiff was paid for her services in the month after she alleged she went into defendant's employment.
Plaintiff contends that it was a question for the jury whether plaintiff's alleged contract for a year began the day performance began. She cites Scharff v. Standard Tank Car Co., 214 Mo.App. 658, 264 S.W. 56-58. Paragraph II, of that opinion, discusses instruction No. 1, as modified by the trial court. We are unable to find that the St. Louis Court of Appeals anywhere said that the oral contract of employment would be binding, unless performance of the contract for one year was begun the very day the contract was made.
Plaintiff also cites Truitt v. Rothschild-Greenfield Co., Mo.App., 32 S.W.2d 770, 772, cited by defendant. This case has been above discussed by us and certainly does not aid plaintiff's contention.
Plaintiff cites a number of cases to show that the corporation is liable on a contract made by its agents within the scope of their authority. Such cases need not be noticed, since there is no contention in this case that the president of defendant did not have power to make the alleged contract if such alleged contract is not otherwise barred by law.
Of course, plaintiff was not limited to employment as a teacher, during the time of such alleged employment by defendant. It was her duty, even on her theory of employment, to reduce her actual damages during such period, in any way she could. So far as the evidence shows, she only complained because she was prevented from teaching that year. Wessler v. City of St. Louis, Mo.App., 242 S.W.2d 289, loc. cit. 290-2981.
Finding no error in the action of the trial court, its judgment must be affirmed.
It is so ordered.
VANDEVENTER, P. J., and McDOWELL, J., concur.