Kindervater v. Till

KekwiN, J. It appears without dispute that the contract mentioned in the first cause of action was oral, and the question arises whether it was void under sec. 2307, Stats., because by its terms it was not to 1je performed within one year from the making thereof. It is insisted by appellants that it was valid because it consisted of two independent parts, one part called by counsel the “working part” and the other the “indemnity part.” It is argued that each part is complete in itself, separate and divisible from the other. The’ substance of the contract claimed to have been made is found in the first question and answer of the special verdict. This action is brought, as stated by counsel for appellants, for breach of the so-called indemnity part of the contract. We" are convinced that the contract is an entire contract, not divisible, and must stand or fall as' such. On this point Hull v. Brown, 35 Wis. 652, and Mason v. Nichols, 22 Wis. 376, ancLcases from other jurisdictions, are relied upon by counsel for appellants. An examination "of these cases will [588] show that they are not controlling here. Cases more nearly in point, and holding that contracts quite similar to the one here are not divisible, but that each part is dependent' upon other parts and make but one contract, are the following: Reindl v. Heath, 115 Wis. 219, 91 N. W. 734, and Martin v. Estate of Martin, 108 Wis. 284, 84 N. W. 439. We are satisfied that the contract is not divisible. It is further-contended that the contract is by its terms to be performed within one year and therefore valid. Counsel seeks to distinguish Chase v. Hinkley, 126 Wis. 75, 105 N. W. 230, from the instant case upon the ground that, while such contract for personal services might be terminated by the death of the servant before the end of the year, “contracting parties are not presumed to have in mind the termination of the agreement in that way,” and hence counsel says such cases are not in point in the instant case. Counsel relies upon Heath v. Heath, 31 Wis. 223, which was an oral contract between A. and B. to support' C. for the remainder of her natural life, and it was held that the contract was not void because by its terms it might be fully performed within a year from its date. But that case is very different from the case here. In that' case it was just as certain by the terms of the contract that it might be performed within one year as that it might not, for C. might die at any time. In the instant case the oral promise alleged to have been made by defendant purports to bind him for the term of four years. The alleged oral contract' is set up in the complaint, the substance of which is embraced in the first question of the special verdict, and is clearly within sec. 2307, Stats., as a contract' not by its terms to be performed within one year, from the' making thereof. The oral contract alleged to have been made provides that defendant “then and there agreed with these plaintiffs that said plaintiffs would, for a period of four years from said date, have the exclusive right to [589] ‘ransport all persons desiring id visit "aid new sanatorium and might receive therefor the- sum of seventy-five cents (75c) for each person transported, payable by said person, and that said defendant would remain’at said new sanatorium for a period of four years from said 17th day of May, 1910, and treat ’all persons so transported- by said plaintiffs and no others.” And the said contract further provides that defendant would protect them against any loss by reason of the purchase for a period of four yeárs from date. But it is argued by counsel for appellants that.there was performance of the contract on the part of the-plaintiffs and that such performance took the contract out of the.stafute. That this contention is untenable is established by the decisions of this court. Chase v. Hinkley, 126 Wis. 75, 105 N. W. 230; Conway v. Mitchell, 97 Wis. 290, 72 N. W. 752; Cohen v. Stein, 61 Wis. 508, 21 N. W. 514; Salb v. Campbell, 65 Wis. 405, 27 N. W. 45. Moreover, there was no full performance on the part of the plaintiffs. There was merely a tender of performance-of the plaintiffs’ part of a void contract. The claim of performance stated in appellants’ brief is to the effect that defendant' proposed to the plaintiffs that if they would agree-to the terms of the “working contract” and buy the McDon-'alds’ -interest he would indemnify them, and that plaintiffs'did agree and.bought' the McDonalds out, hence there was full performance on their part. Counsel on this point relies upon Treat v. Hiles, 68 Wis. 344, 32 N. W. 517. It will be seen'that in that case the court held that' the contract was a contract for a partnership or a contract of partnership, and did not' come within the terms of sec. 2307, Stats. We deem further discussion unnecessary. We are satisfied that the judgment below is right and should be affirmed- By the Court. — The judgment is affirmed.