Opinion
No. 52/179.
12-07-1922
STITES v. GASKILL.
Powell & Erickson, of Bridgetou, for complainant, Walter H. Bacon, of Bridgetou, for defendant.
(Syllabus by the Court.)
Suit by Nathaniel Stites against John Gaskill on bill for accounting. Order of reference.
Powell & Erickson, of Bridgetou, for complainant,
Walter H. Bacon, of Bridgetou, for defendant.
INGERSOLL, V. O. The defendant is an oyster planter, owning and operating one or more boats for planting and dredging oysters and having leasehold rights from the state in several tracts of oyster grounds or "bottoms" in Maurice River Cove, Delaware river, New Jersey. The complainant, Stites, is an oyster boat captain, of apparent considerable experience and ability.
In April, 1919, the defendant endeavored to secure the services of the complainant as captain of his boat, on what is known in the trade as "on shares." The complainant refused the offer upon the ground that he was financially unable to wait until the determination of the result of the venture to receive his pay, but offered to accept the position upon a salary basis of $1,200 per year. This was accepted by the defendant and the complainant assumed the duties of captain and began the performance of the duties thereof. At the time of or immediately after commencing work, the defendant, in a conversation between them, said to the complainant:
"If you make me any money, I will give you a share of it."
In a letter dated January 12, 1922, the defendant confirms this statement by writing:
"I also told you, when you went up the bay to plant, if you made me any money, I would give you something, a share of it."
In a settlement made by the defendant with the complainant for the profits from sale of oysters planted in 1919, this verbal agreement was complied with, and the complainant was allowed his share of those profits in accordance with the trade custom of settling "on shares." And the controversy is now over the profits of the sale of oysters planted in the years 1920 and 1921.
The defense is, first, that the original contract that the complainant was to receive the sum of $1,200 per year was in force during those two years; the verbal offer of a payment on shares extending only to the one year. I am unable to accept this as a fact. The books of the defendant were kept in the manner necessary for a settlement "on shares," for the tracts or "bottoms" planted by the complainant, and although the bookkeeper testified that record of the business of other tracts or locations was kept in the same manner, when called upon by the court to exhibit such record, she was unable to do so. I find as a fact that the contract "on shares" extended during the term of employment.
The defendant claims, if such a contract is found to have been made (as is now found by me), that it is within the provisions of the fifth paragraph of the statute of frauds (2 Comp. St 1910, p. 2612). The complainant was hired for $1,200 per year, and it appears that he could be discharged at any time. Surely at the expiration of the year his services could be dispensed with.
The custom of "going on shares" was explained in great detail by Joseph P. Fowler, a member of the shell fisheries department of the state of New Jersey, and under that custom the complainant would be entitled to share in the profits of the sale of oysters planted by him, whether gathered by him or not, and in the event of his ceasing to be employed by the defendant, he would at the time of sale of such oysters, before gathering (as was done in this case) or when gathered by another employee of the defendant, be entitled to his share in the profits thereof. Thiscustom is in accordance with the equities of the case as set forth by Vice Chancellor Fielder and affirmed by the Court of Errors in Myers v. J. Wiss & Sons Co., 118 Atl. 450.
The language of Judge White, in the case cited by the defendant of Smith v. Balch, 89 N. J. Eq. 566, on page 568, 105 Atl. 17, on page 19:
"It is also urged that the case falls under the ban of the fifth paragraph of the statute of frauds, which prohibits any action upon any agreement not to be performed within one year, unless the same or some memorandum or note thereof be in writing signed by the party to be charged therewith. We disagree with this contention. In order for this provision of the statute to apply, it must appear that the parties intended when they made the contract that it should not be performed within the year. If this does not expressly or clearly appear, and the contract is one which, taking in consideration the subject-matter, may be performed within the year, the statute does not apply, although, in fact, a longer time was actually taken in performance. Eiseman v. Schneider, 60 N. J. Law, 291; Devalinger v. Maxwell, 54 Atl. Rep. 684; Page, Cont. §§ 668, 674, 675,"
—is particularly pertinent in this present case. The hiring was for $1,200 per year, subject to termination at least at the end of each year, and actually terminated at a time when large quantities of oysters were planted and ungathered. Of necessity, unless such hiring was to be in perpetuity, it must end in a like condition. The custom proven provided for such a situation, and considering also that the additional compensation of "on shares" was to cover the final year's services, the present case must be found to be within the rule enunciated in Smith v. Balch, supra. The statute of frauds therefore does not apply to the present case.
The result is that there must be a reference to a master for an accounting in accordance with the views above expressed. Should the master find difficulty in the manner of accounting between the parties, application may be made for instructions.