Abba v. Smyth

After stating the facts, Miner, J., delivered the opinion of the court. The first question for determination is, Was the contract void under the statute of frauds ? Sec. 2467, Rev. Stat., 1898, reads as follows: “ Gertai/n agreements void unless in writing. In the following cases every agreement shall be void, unless such agreement or some note or memorandum thereof be in writing and subscribed by the party to be charged therewith.” — 115 — Under this section unless the essential terms of the contract can be determined from the contract itself, it is within the statute of frauds, and if thus defective, the defect can not be supplied by parol proof, for by admitting parol testimony to supply the essential parts of the contract, would be to restore the mischief which the enactment of the statute of frauds was framed to prevent. 2 Kents Comm. (12th ed.), 511; Williams v. Morris, 95 U. S., 456; Morris v. Lane, 16 Johns (N. Y.), 151. While this is true, yet “Any note or memorandum in writing which furnishes evidence of a complete and practical agreement is sufficient under the statute, and parol evidence is admissible to explain latent ambiguities, and to apply the instrument to the subject-matter. ” Williams v. Morris, 95 U. S., 444; Barry v. Coombe, 1 Pet., 640; Clark v. Burnham, 2 Story, 131; Story on Sales, 257; Brown v. Markland, 16 Utah, 360. In Pomeroy on Contracts, Sec. 85, the following rule is laid down: “The memorandum, whether consisting of one writing or of several, must contain all the essential terms of the 4 agreement so stated that, while parol evidence may, perhaps, be resorted to for purposes of identification, and to explain the situation of the parties and of the subject-matter, it shall not be required to supply any substantive feature which has been omitted. While the memorandum must thus embrace the substance of the contract, it need not describe the terms in a complete and detailed manner; it is enough that what the parties have really assented to can be gathered from the writing, and is not left to the recollection of witnesses. When this requirement is complied with, the demands of the statute are satisfied, however brief and informal the document may be.” Under the light of these authorities was the contract — 116 — sufficiently complete; first, to show who the parties were; second, the subject-matter; third, the agreement on both sides; fourth, the consideration. While this contract is loosely drawn, yet it is reasonably certain as to all the necessary requirements of a memorandum as required by the statute. The meaning of the contract construed in the light of the subject-matter and the words used, and without the use of extrinsic evidence, is reasonably plain. From its reading it is apparent that Smyth, the party of the first part, entered into, an agreement with Abba, the party of the second part, and both parties signed the agreement. Each party agreed with the other to all that is contained in the contract. They both agreed in writing, first, that Smyth employ Abba to work on Smyth’s farm, and that Abba should receive for such work, which he agreed to'perform, one half .of all crops raised on the farm, but before division of the crops so raised, Smyth should receive 35 tons of hay and 50 bushels of oats, and that the remainder of the crops should be divided equally between Smyth and Abba. Smyth also agreed to furnish Abba all seeds, farming implements, horses, and wagons, and to board and lodge Abba during the period of the lease while Abba was working the farm, and was also to furnish a man to help Abba on the farm, and to furnish water to mature the crops so being raised. The agreement should continue during the farming seasons of 1898, 1899, and 1900. By signing this agreement both parties' agreed to its terms, and if a breach occurred by the fault of either, liability would follow. Each part of the contract, is as much Abba’s as it is Smyth’s. By it Abba agrees to enter the employ of Smyth during the years 1898, 1899, 1900, and work his farm, and for his compensation he first agrees to give Smyth 35 tons of hay and 50 bushels — 117 — of oats, before a division of the balance of the crops raised; and second, he agrees that the balance of tbe crops raised each year shall be equally divided between Smyth and himself. Abba also agrees that Smyth shall furnish him the seeds, farming implements, horses, and wagons with which he is to work the farm, as well as lodging and board, and that during the working season Smyth should furnish water with which to mature the crops while growing during the period named, and also furnish a man to assist him. Abba agrees to work the farm during the term named on these conditions.' These facts, though not all stated, are clearly implied from the contract itself, and therefore become a part of it. On the very day the contract was made Abba entered upon the farm and commenced to work, and continued to work it, raising and harvesting crops from April Nil to November 28th, 1898, without objection by the defendant. At this time, it appears, he was ejected from the farm by commands and threats of the defendant. The rule invoked by the respondent that when only one of the parties signs the contract, such party only becomes bound thereby, does not apply here, as both parties signed the contract, and it was mutually binding upon both. By signing the contract both became obligated by its terms and consented to its provisions, and should be held bound by such reasonable construction ?s the contract implies. The agreement was not unilateral, but bound both parties to it. It was not void under the statute of frauds, as both parties executed the writing which imposed mutual obligations on each. .But it is claimed that the testimony was inadmissible, and was rejected on the ground that it was irrelevant, immaterial, and incompetent; that it was unilateral and only bound the defendant; that it lacked mutuality, and was therefore void under the statute of frauds. — 118 — As already stated, we do not concur in this view. It is true that evidence was not admissible to contradict, add to, or vary the terms of the contract, but evidence was admissible to show that the plaintiff complied with his part of it, and fulfilled its terms. It was competent to show that on the day the contract was made plaintiff immediately commenced to work on the farm in performance of his agreement; that he put in and harvested crops, delivered to defendant his proper share thereof; that the defendant failed to perform its condition on his part, and neglected to furnish water to mature the crops; to show the damages resulting from defendant’s violation of the agreement, how the parties treated the contract; and what interpretation they placed upon it. Plaintiff could show that defendant permitted him to work the farm for six months and then drove him off, and refused to let him proceed under the contract. These were all pertinent matters, and proof thereunder was admissible. In Brown v. Markland, 16 Utah, 360, this court held: ‘ ‘ In the light of what was said and done at the time of a transaction, of the conduct of the parties thereafter, and of the interpretation which they themselves have placed upon it, a court is more likely to arrive at the real meaning and intent of the parties when the terms employed in an instrument are indefinite and ambiguous. Such evidence is not received to vary the language of the writing, but to explain what was meant by its use. It serves to explain the subject-matter, and enables the court to determine what the instrument referred to and embraced. Its object is to elucidate the meaning of the parties.” Windmiller v. People, 78 Ill. App., 273; Buford v. Lonergan, 6 Utah, 301. Upon an examination of-the answer it will appear that no issue under the statute of frauds was raised therein. — 119 — The statute of frauds was not plead, nor was any defense such as was interposed at the trial set out. So far as appears, the plaintiff had no notice of the defense that was interposed until the trial had commenced. The answer denies part of the allegations in the complaint; admits the execution of the written instrument; alleges that the plaintiff remained away and neglected the farm at various times; that defendant duly performed all the conditions of the written contract, by him to be performed, and claims damages against the plaintiff under a counterclaim interposed because plaintiff had not performed his part of said contract. By admitting the contract, alleging its fulfillment by defendant and non-fulfillment by the plaintiff, and claiming damages for such non-fulfillment by plaintiff, the defendant was hardly in a position to insist upon the statute as a bar to the action, or to urge that the contract was unilateral and binding upon the defendant only. In effect the answer admits the contract, asserts its binding force upon both parties, claims under it, relies upon its breach by plaintiff, as a ground upon which to recover damages for its non-fulfillment, and yet this court is asked to say that the contract is unilateral, lacks mutuality, and was void under the statute of frauds. It is useless to assert that defendant has not acted upon and treated the contract as binding upon both parties. The plea of the statute of frauds is a personal privilege which a party may waive, and by failing to specifically plead it as a defense, defendant could not afterward avail himself of its benefits. This is the general and approved rule. Wilson v. Sullivan, 17 Utah, 341; Lauer v. Richmond, Co-op. Inst., 8 Utah, 305; Wood on the Statute of Frauds, Sec. 538; 9 Enc. of PI. & Pr., pp. 705, 713, and cases cited; Gill v. Clement, 59 Mo. App., 484; Muldoon, et al., v. Brown, et al., 59 Pac., 720; 21 Utah, 121. — 120 — If the defendant admits the contract, be must still interpose tbe defense of the statute of frauds in his answer, in order to make it available in his defense. Maybee v. Moore, 90 Mo., 343; 9 Enc. of PI. & Pr.,p. 713, and cases cited; Iverson v. Cirkel, 56 Minn., 299; Connor v. Hingtgen, 19 Neb., 472; Ashmore v. Evans, 11 N. J. E., 151; Duffy v. O'Donovan, 46 N. Y., 223; Barrett v. McAllister, 33 West Va., 738. Wo are of the opinion that the court erred in rejecting the testimony offered tending to show a compliance with the contract on the part of the plaintiff, and a breach thereof on the part of the defendant, and in holding the contract to be unilateral and not binding upon the plaintiff, and in holding the contract void under the statute of frauds. Under the circumstances, if desired, each party should be allowed to amend their pleading on such terms as the trial court may deem just. The cause is reversed, and remanded to the district court with directions to grant a new trial. Plaintiff is entitled to costs. Bartoh, C. J., concurs.