Construction of statute. Bracegirdle v. Heald. Snelling v. Lord Huntingfield. Giraud v. be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized." In this enactment the word "performed," means a complete and not a mere inchoate or partial performance; and therefore where an agreement distinctly shows upon the face of it that the parties contemplated its performance to extend over a greater space of time than one year, it is within the statute; but where the contract is such that the whole may be performed within a year, and there is no stipulation to the contrary, the statute does not apply (f). Accordingly, where (g) the defendant verbally agreed on the 27th of May to take the plaintiff into his service as groom and gardener for a year, to commence on the 30th of June following, but afterwards refused to receive him, it was held that the plaintiff could not sustain any action for such breach of contract, as there was no written agreement, Lord Ellenborough, C. J., saying, "If we were to hold that a case which extended one minute beyond the time pointed out by the statute did not fall within its prohibition, I do not see where we should stop; for in point of reason, an excess of twenty years will equally not be within the act." So, where (h) the defendant on 20th July proposed to hire the plaintiff as bailiff for one year, to commence on the 24th of July, and the defendant at that time wrote a memorandum (but which was signed by neither of the parties), which was delivered to the plaintiff, and by him taken away, stating the terms on which the plaintiff was to serve, and the plaintiff entered the defendant's service on the 24th, but before the expiration of the year the defendant, being displeased with the plaintiff, gave hin a month's warning to quit his service, and the plaintiff left before the expiration of the year. It was held that he could not maintain an action against the defendant for not continuing the plaintiff for the year, as there was no agreement in writing, in conformity with the Statute of Frauds. And where (i) the plaintiff entered into the service of the defendant under the following agreement; "I agree to receive you as clerk or bookkeeper in my establishment, in consideration of your paying me a premium of 300l., and to pay you a salary at the following rates, viz., for the first year 701.; for the second, 901.; for the third, 1107.; for the fourth, 1307.; and 1507. for the fifth and following years that you may remain in my employment; and I also agree in case of the death of either of us to return 1507.:" it was held that the agreement was one (f) Per Tindal, C. J., Souch v. Strawbridge, 2 C. B. 815; Boydell v. Drummond, 11 East, 142. The cases on this subject will be found collected in 1 Smith's L. C., note to Peter v. Compton; and see Cherry v. Heming, 4 Exc. 631; S. C. 19 L. J., Exc. 63. (g) Bracegirdle v. Heald, 1 B. & Ald. 722; Dobson v. Collis, 1 H. & N. 81, post, p. 23. (h) Snelling v. Lord Huntingfield, 1 C. M. & R. 20. (i) Giraud v. Richmond, 2 C. B. 835. that, by the Statute of Frauds, was required to be in writing; and that, there being a precise stipulation for yearly payments, evidence was not admissible to show a verbal agreement for quarterly payments. here on con No action can be brought in the Courts of this country to No action lies enforce an oral agreement made abroad (and valid there), which, tract made if made here, could not, by reason of the Statute of Frauds, have abroad if been sued upon. within Where, therefore, an oral agreement was entered into at Leroux v. Calais between the plaintiff and the defendant, under which the Brown. latter, who resided in England, contracted to employ the former, who was a British subject resident at Calais, at a salary of 1001. per annum, to collect poultry and eggs in that neighbourhood for transmission to England, the employment to commence at a future day, and to continue for one year certain; it was held that no action could be maintained in this country for breach of the agreement, although, by the law of France, such an agreement is capable of being enforced, although not in writing (k). within the The mere circumstance that a contract is defeasible, and may Defeasible be put an end to within the year, does not take it out of the contract operation of the Statute of Frauds, if, by its terms, it is to con- statute. tinue for more than a year, in case it is not put an end to (1). Therefore, where (m) the defendants on the 2nd of October, Dobson v. 1854, verbally agreed to employ the plaintiff as a traveller until Collis. the 1st of September, 1855, and for a year thereafter, unless the employment were determined by three months' notice given by the plaintiff or defendants respectively, it was held, that no action could be maintained by the plaintiff for wrongful dismissal before the 1st of September, as the contract was not in writing, and it was not the less a contract not to be performed within the year, because it might be put an end to within that period. And Alderson, B., added, "See the absurdity of holding otherwise at the end of two years and a half one of the parties might claim a right to put an end to a parol contract for five years, by giving three months' notice, but the very subject of dispute might be whether or no he had a right to give such notice. That shows this is a contract within the statute." time not But a contract to serve for an indefinite period, subject to be Contract for put an end to at any time upon a reasonable notice, is not an indefinite within the statute, though it may extend beyond the year (n). within it. A contingency is not within the statute, nor any case that depends upon a contingency (o). The words of the statute "not to be performed," mean, not Statute does to be performed on one side or the other (p). Where, therefore, not apply the contract has been, or is capable of being, completely per- completely (k) Leroux v. Brown, 12 C. B. 801. (1) Birch v. Earl of Liverpool, 9 B. & C. 392; and see Roberts v. Tucker, 3 Exc. 632. (m) Dobson v. Collis, 1 H. & N. 81; S. C. 25 L. J., Exc. 267. (n) Per Tindal, C. J., in Souch v. Strawbridge, 2 C. B. 815. (0) Per Denison, J., in Fenton v. Emblers, 3 Burr. 1278. (p) Donellan v. Read, 3 B. & Ad. 899; Smith v. Neale, 26 L. J., C. P. 144; 2 C. B., N. S. 67. to contract executed on one side. But does, if not completely exe cuted on one side. Statute does not apply to an implied hiring; or a hiring by deed; formed on one side, the statute does not apply (q). The consideration, when entire, cannot be split: where, therefore, any part of it is not executed, the statute has been held to apply (r). Cases, however, may arise, in which there may be two separate promises on separate considerations in one agreement, to one of which the Statute of Frauds may apply, whilst the other is not within that statute. In such cases an action may be brought upon the promise to which the statute does not apply, although not in writing (s). But the statute does not apply where an agreement for a yearly hiring is merely implied from circumstances (t). And it would seem to be the better opinion, that it does not apply where the agreement is by deed (u), as the object of the statute would be satisfied where the terms of the agreement were reor affect cases duced into writing, and authenticated by a seal or mark. Nor of settlement does the statute, or the decisions upon it, affect the question of by hiring and what is a sufficient hiring to confer a settlement by service under it (x). And the absence of an agreement, in compliance with the Statute of Frauds, would not defeat an action for services per- wages in respect of services actually performed, though the amount which a plaintiff in such a case could recover, would depend upon what his services were worth, irrespectively of any agreement. service; or action for wages for formed; except as to amount of wages. Nor certain 4 Geo. 4, c. And in the case of a dispute between master and servant, cases under within the meaning of the statute 4 Geo. 4, c. 34, the absence of a contract in writing would not take the case out of the jurisdiction of a magistrate where the service had been entered into (y). 34. Formal agreement not necessary. Mere acknowledg. ment suffi- Roberts v. Where an agreement in writing is necessary, under the terms of the Statute of Frauds, it is not necessary that there should be a formal agreement, signed by the party to be charged; any acknowledgment in writing, that he had entered into such an agreement, would be a sufficient memorandum within the statute (z), if made before action brought. An acknowledgment made afterwards would not do (a). But it has been held, that the mere nomination to the bishop of the diocese, of the plaintiff as the defendant's curate, is not a sufficient acknowledgment (b). (q) Cherry v. Heming, 4 Exc. 631; 19 L. J., N. S., Exc. 63, S. C.; Souch v. Strawbridge, and Smith v. Neale, ubi supra. But see 1 Byth. Conv. (3rd ed.) 310, 311; 1 Smith's L. C. 143, note to Peter v. Compton. (r) Cocking v. Ward, 1 C. B. 858; Hodgson v. Johnson, 28 L. J., Q. B. 88. (s) Green v. Saddington, 7 E. & B. 583; Hodgson v. Johnson, ubi supra. (t) Beeston v. Collyer, 4 Bing. 309. (u) Cherry v. Heming, 4 Exc. It would seem, however, that a note or letter written to a Note to third third person, would be sufficient to satisfy the statute (c). And person. even a note addressed to the other contracting party, attempting to withdraw from the agreement, may supply the name if not mentioned in the agreement (d). lected from It matters not from how many different papers the agreement Agreement be collected, provided they are connected in sense (e), for the may be colwriting is merely evidence of the contract which is made before numerous any signature thereof by the parties (f). If they refer to one papers. another, they may be connected by parol evidence (g). in writing in The statute enacts, that "the agreement, or some memo- What is rerandum or note thereof," shall be in writing, &c. This word quired to be agreement" includes the consideration upon which the agree cases within ment of the party to be charged is founded, as well as his Statute of promise (h). Frauds. appear, In every written contract of hiring and service, therefore, the Consideraconsideration must appear, either expressly or by necessary im- tion must plication, or the contract cannot be enforced (i). Thus, where(k) either exthe defendant signed the following agreement, "I hereby agree pressly, to remain with L. for two years from the date hereof, for the Lees v. Whitpurpose of learning the business of a dressmaker," it was held that comb; L. could not maintain an action against the defendant for leaving her service before the expiration of the two years, as the agreement did not show any obligation on L. to teach the defendant, and was, therefore, void for want of mutuality. Dixon; And where (1) B. signed an agreement to "work for and Sykes v. with S., manufacturer of powder-flasks and other articles, at and in such work as he shall order and direct, and no other person whatsoever, from this day henceforth during and until the expiration of twelve months; and so on from twelve months end to twelve months end, until I shall give the said S. twelve months' notice in writing that I shall quit his service;" the agreement was held void for want of mutuality, as S. was not bound to employ B.; and, therefore, it was also held that S. could not maintain an action against the defendant for harbouring B. New South So, upon similar principles, an agreement by the defendants, Payne v. that the plaintiffs should have the defendants' shipbroking Wales Coal business at the port of Sydney, upon certain terms, and that Company: the defendants would provide the plaintiffs with a free passage to that colony, was held void, as not disclosing any considera (c) See 12 C. B. 818, 822. (d) Warner v. Willington, 25 L. J., Ch. 662. (e) Boydell v. Drummond, 11 East, 152; 1 Smith's L. C., note to Birkmyr v. Darnell. See per Maule, J., in Weedon v. Woodbridge, 13 Q. B. 475. (f) Laythoarp v. Bryant, 2 Bing. N. C. 744. (g) Ridgway v. Wharton, 6 Ho. Lords Cas. 238; 27 L. J., Ch. 46. (h) Wain v. Warlters, 5 East, 10; Saunders v. Wakefield, 4 B. & A. 596; and cases cited in 1 Smith's L. C., note to Birkmyr v. Darnell; see also 1 Wms. Saund. 211; Puff. lib. 5, c. 2, s. 2; Grot. lib. 2, c. 11, s. iv. 2. (i) 1 Wms. Saund. 211, note d. (k) Lees v. Whitcomb, 5 Bing. 34; and see Sweet v. Lee, 3 M. & G. 466. (1) Sykes v. Dixon, 9 A. & E. 693. с or by implication. Pilkington v. Hartley v. tion, the plaintiffs not being bound to work for the defendants (m). All the cases, however, agree that it is enough if the consideration can fairly be collected from the terms of the writing (n). Therefore, where (o) the plaintiffs agreed in writing with L. that he would at all times, during the term of seven years, serve them as a crown-glass maker; that he would not, during the said term, work for any other person at any other glass-house or place of business, without the license of the plaintiffs; that it should be lawful for the plaintiffs to deduct from his wages any fine that he might incur for breach of their rules; that during any depression of trade he should be paid a moiety of his wages; that if he should be sick or lame the plaintiffs should be at liberty to employ any other person in his stead without paying him any wages; that the plaintiffs should pay him when and so long as he should continue to be employed and work as a crown-glass maker, wages by the piece, (stating them,) and 81. per annum in lieu of house-rent and firing; and that the plaintiffs should have the option of dismissing him from their service on giving him a month's wages or a month's notice: it was held that, looking at the agreement altogether, it sufficiently appeared that the plaintiffs were bound to employ L. for the seven years subject to the notice, and that L. was bound to serve them for that period on the same terms; and therefore that the contract was binding on the parties, and might be made the foundation of an action against the defendants for harbouring and employing the plaintiffs' servant. And so, where (p) P. contracted to serve the plaintiff and his partners, for the time being, for seven years, in the business of a glass and alkali manufacturer, and at all times, during the term, to do his best endeavours and use his utmost care and diligence in the works; and further, that he would not at any time during the term neglect or absent himself from the said service without the consent in writing of the plaintiff or his partners for the time being, or either or such of them as should carry on the business, nor would work for or serve any other person without such consent; in consideration of which service the plaintiff agreed to pay P. 24s. per week for a certain amount of work, and to find him some other description of work, provided he should not require that quantity of the specified work, so that P.'s wages should not be less than 24s. per week, except when a furnace should be out, when P. agreed to work for 21s. per week; and it was agreed, that if P. should be sick or incapacitated from performing the service, or in case of misconduct, or if the plaintiff or his partners for the time being, or either or such of them as should carry on the trade, should (m) Payne v. The New South Wales Coal, &c., Company, 10 Exc. 283. (n) Per Wightman, J., in Powers v. Fowler, 4 E. & B. 518. (0) Pilkington v. Scott, 15 M. & W. 657. (p) Hartley v. Cummings, 5 C. B. 247; and see Williamson v. Taylor, 5 Q. B.175; R. v. Welch, 2 E. & B. 357; Re Bailey, 3 E. & B. 607. |