Foley v. Marsch

The following opinion was filed November 16, 1915: SiebecKeb, J. 1. It is contended that the court erred in ■admitting parol evidence tending to show that the original written agreement between plaintiff and defendant had been modified by an oral contract on July 5, 1910, as alleged by the plaintiff. It is claimed that the original agreement was ■one within the statute of frauds, sec. 2307, Stats. 1913, providing that “Every agreement that by its terms is not to be performed within one year from the making thereof” shall be void unless in writing. In the early case of White v. Hanchett, 21 Wis. 415, 416, it was declared, “The contract to be within the statute must be such that it cannot be performed within a year.” In Conway v. Mitchell, 97 Wis. 290, 298, 72 N. W. 752, this court refers to the adjudications on this subject and declares: “Of course, it is well settled that if an agreement, by its terms, may be performed within .a year from the time it is made, then it is not within the stat [30] ute.” Tbe trial court held that' under tbe terms of tbe original contract tbe entire work might bave been completed before tbe expiration of a year from tbe making thereof. We-find nothing in tbe contract at variance with this interpretation of tbe contract. Tbe understanding and intention of' tbe parties as shown by its contents clearly harmonize with tbe idea that tbe contract could be fully executed within a-year from its date. The contract must therefore be treated" as not within tbe statute of frauds. Under these facts of the-case tbe trial court properly received parol evidence tending to show that tbe parties at tbe time alleged made an agreement which modified tbe written contract. Tbe parties to-tbe contract could by mutual agreement modify it without any new consideration. Schoblasky v. Rayworth, 139 Wis. 115, 120 N. W. 822, and cases cited. 2. It is claimed that tbe evidence does not permit of the-inference that tbe plaintiff and defendant agreed to a modification of tbe original contract, as found by tbe jury in response to questions 1 and 2 of tbe special verdict. An examination of tbe record satisfactorily shows that tbe favorable inferences from plaintiff’s evidence sustain tbe findings of tbe jury. Tbe evidence being in conflict on tbe subject, tbe court properly submitted tbe issue to tbe jury and their finding cannot be disturbed. 3. In tbe light of these findings and that tbe original contract is not one within tbe statute of frauds, tbe question, whether or not tbe contract lacks mutuality need not be considered. Under tbe findings of tbe jury that by tbe modified oral agreement defendant agreed to pay plaintiff tbe full: reasonable value of all tbe work done on tbe job, there remained no basis for any counterclaim for breach of tbe original contract and hence no error was committed in refusing-to receive evidence on this subject. ■ 4. It is argued that tbe court erred in its instruction in connection with question No. 5, finding tbe reasonable value of [31] the use by plaintiff of defendant’s steam shovel and other appliances. There is evidence by the plaintiff that defendant •offered him the use of his implements free of charge, and ■that the shovel was somewhat old, and that the wagons could not be used in doing the work. Defendant offered evidence to the effect that the rental value of his appliances was the proper and only basis of the reasonable value of their use .and gave the amounts thereof based on the property value of the articles furnished, and claimed the rental value for the time he asserts the articles were in plaintiff’s possession. The court held that the jury was not bound by the defendant’s ■opinion evidence as to rental value and that they might reject it in view of plaintiff’s evidence that defendant agreed to furnish part of them free of charge and of the worn condition ■of the shovel, and that under the facts and circumstances the jury was justified in believing that the parties did not contemplate a rental value charge should be made, but that the reasonable value of the use the plaintiff had of them in doing his work might be allowed, and instructed the jury accordingly. We consider that the court’s conclusion and instruction to this effect were proper and correct under the facts ;and circumstances of the case, and that the defendant was not ■entitled to a peremptory instruction directing the jury to allow defendant the rental value of the appliances furnished plaintiff and that they must allow the amount fixed by the defendant’s evidence. 5. It is argued that the phrase “on or about July 5th” in ■questions 1 and 2 of the verdict renders the verdict so indefinite and uncertain that it cannot be said that the jury have to a certainty determined the issue involved in these questions. We do not find this form, of framing the questions ■ambiguous or indefinite. The questions and answers give a clear and certain finding that the parties made the alleged modification agreement on or about July 5th. It must be presumed that the jury agreed on their answers and that they [32] based tbeir answers on the evidence, which permitted only of the inference that the contract was modified July 5th or not at all. The jury found it was so modified. 6. An exception to the instruction given in connection with the sixth question of the verdict is urged upon our attention. The judgment rests upon -the first, third, fourth, and fifth findings of the verdict. The answers to these questions entitle the plaintiff to recover without regard to the finding made in response to question 6. The result is that the issue. covered by the sixth question and answer is wholly immaterial in determining the rights of the parties and any alleged error in respect thereto could not operate to defendant’s- - prejudice, and hence the exception need not be considered. 7. We have examined the exceptions to the rulings of the court in permitting amendments of the complaint and to the rulings' upon rejection of evidence offered by defendant and are satisfied that no prejudicial error was committed by the court in making these rulings. There is no reversible error in the record, and the court properly awarded judgment on the verdict. By the Court. — The judgment appealed from is affirmed. A motion for a rehearing was denied, with $25 costs, on January 11, 1916.