Bersch v. Dittrick

Gamble, Judge, delivered the opinion of the court. 1. The plaintiff sued for services rendered to the defendants from the 17th January to the 15th June, 1853, at $66 66|‘ per month. The defendants answered that the plaintiff, on or [131] about the 17th January, agreed with the defendants to serve them in their store for the period of one whole year from the said 17th of January, at the salary of $800, and that, under the said agreement, the plaintiff, on or about the said 17th of January, entered upon the service and continued therein until the 15th of June, when, without cause or reason, he quit the service and refused to comply with his contract. The court below treated the contract sot up in the answer as void, under the statute of frauds, because it did not appear to be one which was to be performed within a year, and gave judgment for the plaintiff on the answer. 1 he argument made here to sustain the decision of the court is, that the answer, by stating that the contract was made on or about the 17th of January, for services to commence on the 17th of January and to continue for a year, embraces a case in which the contract was made several days prior to that day, so as to be a contract for a year’s service to commence in the future. The answer in this case is so drawn as to present a case which will be within the statute, while, at the same time, its terms describe a contract which may not be within it. “ On or about” a given day may, in literal strictness, mean on the day, or on a day either before or after the day. As this allegation in the answer may cover a contract which is not affected by the statute, it is thought proper to apply to it the rule declared in the 5th section of the 7th article of the code, in these words : “ In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed with a view to substantial justice between the parties.” In the present case, it will be entirely within the power of the court, upon the trial of the case, to give full effect to the statute, if the contract which the defendants may prove shall appear to be one for a year’s service, to commence in the future. The course which has been adopted of rendering judgment on the answer, assumes that the contract is void because it may, consistently with the allegation of the answer, have been made some time prior to the 17th of January. Although such case would be consistent [132] with the allegation in the answer,- yet it would be equally consistent therewith that the contract was made on the 17th January, or even on a day subsequent. The judgment is reversed, with the concurrence of the other judges, and the cause remanded.