Horton v. Wollner, Hirshberg & Co.

Somerville, J Hndef the provisions of the statute of frauds, as adopted in this State, “every agreement which, by its terms, is not to be performed within me yecur from the making thereof,” is declared to be void, “ unless such agreement, or some note or memorandum thereof, expressing the considera [456] tion, is in writing, and subscribed by the party to be charged therewith, or some other person by him thereunto lawfully an thorized in writing.” — Code, 1876, § 2121. . That a contract for labor, or personal' services, if not to be ' performed within a year, falls within the influence of this statute, is well settled, and can admit of no question.—Scoggin v. Blackwell, 36 Ala. 351; 2 Parson on Cont. (6th Ed.) *45. Where, therefore, one is employed for a year’s service, to begin in futuro, the agreement is void, if merely -oral, and the employee- can not maintain an action on it against the employer, or master, for discharging him before the expiration of the year. 2 Whart. Ev. § 883; Scoggin v. Blackwell, supra ; Dickson v. Frisbee, 52 Ala. 165; Treadway v. Smith, 56 Ala. 345. The contract which is the basis of the present action, consists of a correspondence by letter. It must be regarded as having been entered into on the 20th of August, 1881, the, date of the plaintiff’s letter accepting the proposition which the defendants had made to him. Inasmuch as the time of service is claimed to be for the period of one year, and was not to begin until the 22d of August, 1881, it is manifest that no recovery can be had upon the contract, unless it conforms to the requirements of the statute of frauds. It is no objection, of course, that the written evidence, adduced to establish the alleged contract, is a correspondence of the parties by letters, provided these documents are so connected together by mutual reference, or otherwise, as to leave no ambiguity or uncertainty touching their legal effect and meaning, when taken together and construed as a whole.—3 Parson on Cont. 17; Browne on Stat. Fr. § 346. But the contract, or intention of the parties, as said by Mr. Greenleaf, “must all be collected from the writings¡ verbal testimony not being admissible to supply any defects or omissions in the written evidence. For the policy of the law is to prevent fraud and perjury, by taking all the enumerated transactions entirely out of the reach of any verbal testimony whatever.”—1 Greenl. Ev. § 268. This rule does not, however, exclude proof of surrounding circumstances in aid of construction, at least in a certain class of cases to which the present does not belong.—Jenkins v. Harrison, 66 Ala. 345 ; 1 Addison on Cont. § 213. Parol evidence is often admitted to aid the identification of the subject-matter.—Fry on Spec. Perf. *166; Mead v. Parker, 115 Mass. 413; S. C. 15 Amer. Rep. 110; Ellis v. Burden, 1 Ala. 458; Chambers v. Ringstaff, 69 Ala. 140. The main point of objection here taken is, that it nowhere appears in the correspondence what was the amount of sala/ry or compensation which the defendants are alleged to have prom [457] ised to pay the plaintiff for his services. The general rule certainly requires that all the essential terms of the contract shall be substantially stated in the writings of the parties, with such degree of certainty, as to render a resort to oral evidence unnecessary in order to ascertain the intention of the parties. A detail of particulars, however, is not required — only a note or memorandum of their agreement in general terms. —Holmes v. Evans. 12 Amer. Rep. 372; Sears v. Brink, 3 Amer. Dec. 475 ; 1 Addison on Cont. § 213. The consideration agreed to be paid by the party sought to be charged, is made by the statute one of the terms necessary to be stated in the writing which he subscribes. The agreement is not only required to be in writing, but it must express the consideration.—Code, § 2121; Rigby v. Norwood, 34 Ala. 129. It has been repeatedly held that, under this statute, a contract for the sale of lands, which fails to state the, price agreed to be paid by the vendee, is void and can not be enforced against him, “unless,” as the statute provides by way of - exception, “the purchase-money, or a portion thereof, be paid, and the purchaser be put in possession of the land by the seller.”—Phillips v. Adams, 70 Ala. 373; Carter v. Shorter, 57 Ala. 253; Adams v. McMillan, 7 Port. 80. The same rule must apply to all other agreements which come within the statute. It is not, in our opinion, sufficient for the agreement to state that the salary was to remain the same as that received the year previous. This is not expressing the consideration in the writing, which the statute requires. Such writing can not be made complete by resorting to verbal or extrinsic evidence, for th's would be to supplement the contract in a way forbidden by the very letter and spirit of the statute of • frauds. If one term of the contract can be thus supplemented, why not another % and if another, where is to be the limitation of the rule? “ The statute can not be complied with,” says Mr. Waterman, “by a writing which refers to a verbal agreement, whether that agreement is subsisting, or to be made afterwards.”—Waterman on Spec. Perf. § 233; Hyde v. Cooper, 13 Rich. Eq. (S. C.) 250. It has been accordingly adjudged, that a memorandum, defective under the statute of frauds, could derive no aid from printed handbills and newspaper notices exhibited by the defendant at the time of sale, and stating the terms of sale.—O'Donnell v. Leeman, 43 Me. 158. The tendency has been too great, perhaps, on the part of the courts to construe away the wise provisions of this salutary statute, by' creating exceptions, designed to mitigate the rigor of its application to supposed hard cases.' All admit it to be impossible to harmonize these numberless conflicting decisions. This court has announced its indisposition to further relax the operation of the statute to meet the necessities and equity of particu [458] lar cases;—Jenkins v. Harrison, supra, p.360. The strict enforcement of its requirements would seem to be a matter of imperious and increasing necessity, in view of. the growing tendency of recent legislation to enlarge the competency of witnesses. The danger of frauds and perjuries, for the prevention of which the statute was enacted, lias been greatly aggravated by this removal of important barriers to the qualification and competency of witnesses. The caution,of the courts should be commensurate with the necessity of correcting, as far as possible, the admitted evils of the existing system. It is insisted that, even if the contract under consideration is void for want of conformity to the statute of'frauds, a recovery can still be had upon an implied agreement, that the defendants would continue to pay plaintiff the same salary which they had paid him for the year previous. Such might be the case, perhaps, in view of plaintiff’s remaining in the service of the defendants, had there been no new contract, and had the character of the services to be performed remained unchanged.—Parker v. Hollis, 50 Ala. 411. But this presumption is destroyed by the fact, that another contract is put in evidence, essentially different from the original one in’many of its terms and conditions. And this new contract, although void under the statute of frauds, has been held by this court to be competent to destroy the implication of any intention to continue in force the old one.—Crommelin v. Thiess & Co., .31 Ala. 412. We discover no error in the ruling of the court below, sustaining the defendants’ demurrer to the evidence introduced by the plaintiff, and the judgment is affirmed.