Degnan v. Nowlin

Townsend, J. Appellant has filed assignment of errors as follows: “(1) In overruling defendant’s motion for a new trial. (2) In refusing to instruct the jury to find a verdict in — 316 — favor of the defendant in the sum of $175.15, as requested by the defendant. (3) In holding that there was sufficient evidence to sustain the verdict of the jury. (4) In refusing to give to the jury the instruction requested by the defendant, which is as follows: 'If you believe from the evidence that the contract in evidence in this case was entered into between the defendant, on the one side, and the plaintiff, Nowlin, and Ab Freese, jointly and as partners, on the other side, then you cannot find your verdict in favor of the plaintiff.' (5) In refusing to give to the jury the instruction requested by the defendant, which is :as follows, to wit: ‘If you believe from the evidence that the contract testified to in this case was entered into between the defendant, as one party, and the plaintiff, Nowlin, and Ab Freese, jointly, as the other party, the plaintiff will not be entitled to recover in this case the value of any work done by him under such contract.’ (6) In refusing to give to the jury the instruction requested by the defendant, which is as follows, to wit: ‘If you believe from the evidence in this case that the contract between plaintiff and the defendant provided that the plaintiff was to sink a slope until the same was in such condition that coal could be mined therefrom and placed upo.n the cars at a less expense than ninety cents per ton, and was thereafter to operate said mine for a term of not less than one year, then your verdict in this case must be for the sum of $175.15.’ (7) In refusing to instruct the jury as requested by the defendant as follows, to wit: ‘Before the plaintiff can recover in this case, he must prove to you by preponderance of the evidence that the defendant entered into a contract to furnish supplies for plaintiff’s men until such time.as plaintiff had reached coal in the mine which he could mine at a profit.’ ” Appellant says," “In view of the fact that several of the instructions requested by the defendant and refused by the court embody the same principle under different expressions, they will not all be discussedsunder separate heads.” Appellant — 317 — discusses his assignment of errors under four heads, contending, first, that “plaintiff sues in this case for the breach of the contract which he alleges he made individually with the defendant. The testimony of the- plaintiff himself shows beyond question that no individual contract was made between plaintiff and defendant, but that, if any contract was made, it was made between the defendant, on the one side, and the plaintiff, together with Ab Freese, on the other; it being made by the plaintiff and Ab Freese as partners.” Both appellee and Freese testify that appellee bought Freese out, and that Freese quit the work not long after the commencement of the same, and the record shows that appellant renewed the contract with appellee, as shown by the testimony, of appellant, as follows: "* * * Then Nowlin came to me and said: ‘Freese has quit me, and what is the show for me to continue the work. I have gone in and done some work, and I can handle that just as well as Freese could.' And I told him that was all right — I would look for him to give me some coal; and he said, ‘Well, will you agree to furnish me just the same as you did Freese;’ and I said, ‘Certainly. All I can give you is the cars, and you have an engine and boiler there, and that is all I will give you.’ * * *” In Enc. of Pl. & Pr. vol. 15, pp. 882, 883, it is said: “Under statutes requiring actions to be prosecuted by the real parties in interest, and authorizing assignees to sue in their own names, where a partner retires, and the firm claims are assigned to the remaining partners or to a new firm, the remaining partners or the new firm may sue thereon without joining the former member; and, irrespective of whether or not choses in action are assignable, if the retiring partner transfers the claim to the remaining partners or a new firm, and the debtor agrees to accept them as his creditors in place of the old firm, they may sue without joining the retired partner.” — 318 — And on pages 715 and 716 the same rule is stated as applying to the federal courts: “Under the code, however, the assignee of a cause of action arising ex contractu, • which can properly be assigned, is the real party in interest, and, as such, may maintain the action in his own name. “ (bb) In Federal Courts. By virtue of the practice conformity act, an assignee of a cause of action arising ex contractu may, as the real party in interest, sue in his own name in .the federal courts sitting in code states, and that, too, according to some decisions, though the assignor retains an interest in the cause of action assigned. But before the adoption of this act the rule was otherwise.” Citing Arkansas Valley Smelting Co. vs Belden Min. Co., 127 U. S. 379, 8 Sup. Ct. 1308, 32 L. Ed. 246; Delaware County vs Diebold Safe, etc., Co., 133 U. S. 475, 10 Sup. Ct. 399, 33 L. Ed. 674. Section 4933, Mansf. Dig. (Ind. Ter. St. 1899, § 3138), says: “Every action must be prosecuted in the name of the real party in interest, except as provided in sections 3140, 3141, 3143.” In Molen vs Orr, 44 Ark. 486, the court said: “In an action by one partner in his own name on a firm claim that had been assigned to him by the retired partner, that thpre was a variance between the proof and the allegations in the complaint, there is no question; but the materiality of the variance is not to be determined, as at common law, by the incoherence of the two statements on their face. It must 'be shown by the party alleging the variance that he has been misled to his prejudice. Mansf. Dig. § 5075 (Ind. Ter. St. 1899, § 3280); Burke vs Snell, 42 Ark. 57.” Parsons on Partnership, page 358, says: “At — 319 — common law no assignment of a debt due a partnership by one of the partners will authorize a suit in the name of the assignee. If, however, the assent of the debtor sufficiently appear, the action by the assignee in his own name is upon a new contract substituted for the old, and will be upheld.” The appellant's second contention is stated as follows: “At the time the plaintiff and his partner, Ab Freese, went to work upon the coal mine in question, it was understood that they should do those things necessary to the taking out of the coal and loading same upon the cars. No payment was to be made by the defendant for the work so done, but the preparations for taking out the coal were to be at the expense of these two parties, and such materials, if any, as were to be furnished by the. defendant, were furnished; and it was at no time agreed between the parties that in the event of the termination of this contract, if a contract it was, could the defendant be held to pay for such preparations.” It is clear from the testimony that the work was done upon a lease of appellant, and that appellee expected to get his pay for said work from the mining of the cheap coal that he would get from the rooms in said mine after the dead work had been completed, and the breach of the contract by appellant prevented appellee from getting his pay out of said work; and it will be further found that appellant took possession of said mine, and used the timbers in the tipple, and got the benefit of the work done in constructing the slope and air courses in said mine. And it further appears from his testimony that appellant received the benefit of that work: “Q. You are putting up a large tipple there now, are you? A. Where? Q. At the same place? A. Yes; going to. That is the intention. Q. You are fixing to dump coal off on the Katy track? A. That is my affair, sir. Q. And it is mine, too. ■ You are using that same slope? A. We are not, sir, but we are going to use it. We are going to put a slope in” — which appellee — 320 — testified, was 25 yards of slope and an air course. It hence appears that appellee lost his work, as well as the prospect of making some money out of the coal, when he had prepared the mine to get it, by reason of appellant’s refusal to furnish supplies as he had been doing, which appellee claims was a breach of the contract. Appellant, for his third contention, says: “The allegation of the plaintiff, after having been changed to suit the emergency of the case, is that the plaintiff was to be permitted to continue the operation of the mine after the operation of the same had become profitable.” And insists, first, that, in the absence of a definite term, “it would seem that plaintiff was to ^old the place at the will of both parties,” and, if that was true, “defendant could at any time oust the plaintiff, without being held for damages”; and, second, that “unless, therefore, the plaintiff has alleged in his complaint and shown by his proof that by the action of the defendant he has been prevented from making a profit out of the operation of this mine, he has no standing in this court.” Appellee insists that * * that contention is in keeping with.the acts of appellant, for we find that he owned the coal lease, and desired it developed, and entered into a contract with appellee to do all the work necessary to the profitable development of the coal, and promised that appellee, after doing said work, should hold the property, and receive his pay for said work out of the coal that could be taken out of the mine at a profit after the expensive work had been done; but when appellee had done almost all of the expensive work, and was almost ready to begin to take coal from the rooms to be constructed in said mine, which would have been the cheap coal, appellant at that time saw fit to disregard his agreement and break his contract.” Freese, having previously sold out to appellee, had no interest in this suit, and the failure to make him a party plaintiff could in no way prejudice the rights of appellant. — 321 — Appellant’s fourth contention is that “the contract''' alleged by plaintiff was void because contrary to the statute of ! frauds.” It does not appear from the testimony of any of the parties that any specified time was fixed by the agreement of the parties for the contract .to run, and, the appellee having gone into possession under the agreement, as he claims, that all supplies were to be furnished by appellant “until we got down to' cheap ■ coal,” he further claims that at the end of four months the contract was broken, and that the greater part of the dead work had been done. The question then presents itself, might not this, contract have-been completed within one year? And, if so, is' it within the statute of frauds? In Arkansas Midland Ry. Co. vs Whitley et al. (Ark.) 15 S. W. 466, 11 L. R. A. 621, the court' says: “In determining when contracts come within the one-year statute of frauds, courts have been governed by the words ‘not to be performed.’ They have treated them as negative words. In construing them, it is said: ‘It is not sufficient to' bring a case within the statute that the parties did not contemplate the performance within a year, but there must be a. negation of the right to perform it within the year.’ According to this rule of construction, it is well settled that the statute only includes those contracts or agreements which, according to a fair and reasonable interpretation of their terms, in the light of all the circumstances which enter into their construction, do not admit of the performance, in accordance with their language an'd intention, within a year from the time they were made, and that it includes no agreement, if, consistently with its terms, it may be performed within that time. Accordingly it is also wéll settled that agreements which contain no stipulation as to time, but depend for performance, either expressly or by reasonable implication, upon the happening of a certain contingency which may occur within the year, do not come within the statute — as, for instance, promises to pay money on the day of the promisor’s — 322 — marriage, or on the death of a third party, or during the pro-misee’s life, to work for another during his life, to board the promisee during his life, to educate a child, are not within the statute; ‘and so, of course, whatever else be the contingency, provided it may happen within a year.’ Roberts vs Rockbottom Co., 7 Metc. (Mass.) 46; Lyon vs King, 11 Metc. (Mass.) 411, 45 Am. Dec. 219; Foster vs McO’Blenis, 18 Mo. 88; Lapham vs Whipple, 8 Metc. (Mass.) 59, 41 Am. Dec. 487; Artcher vs Zeh, 5 Hill, 200; Lawrence vs Cooke, 56 Me. 187, 96 Am. Dec. 443; Peters vs Westborough, 19 Pick. 364, 31 Am. Dec. 142; Ellicott vs Peterson’s Ex’rs, 4 Md. 487; Blair Town Lot Co. vs Walker, 39 Iowa, 406; Plimpton vs Curtiss, 15 Wend. 336; Russell vs Slade, 12 Conn. 460; Rogers vs Brightman, 10 Wis. 65; Jilson vs Gilbert, 26 Wis. 637, 7 Am. Rep. 100; Meyer vs Roberts, 46 Ark. 84, 55 Am. Rep. 567; Browne, St. Frauds (4th Ed.) §§ 273-283, and cases cited; 1 Smith, Lead. Cas. pt. 1 (8th Ed.) top pages 619-623, and cases cited” — and, to sustain the foregoing, also cites the following cases: Sweet vs Desha Lumber Co., 56 Ark. 629, 20 S. W. 514; Dailey vs Cain (Ky.) 13 S. W. 422; Jones vs Langdon (Ky.) 3 S. W. 129; St. Louis, A. & T. Ry. Co. vs Graham (Ark.) 18 S. W. 56; Taylor vs Deseve (Tex. Sup.) 16 S. W. 1008. Under the proof in this case and the authorities cited, we have arrived at the conclusion that this contract is not within the statute of frauds, and that appellee can recover. The jury having found for appellee, and there being evidence to support the verdict, this court will not disturb the same, and therefore the judgment of the court below is affirmed. Raymond, 0.; J., and Gill, J., concur.