Pitcher v. Wilson

An-agreement between A. andB. that A. shall serve B.live years, in consideration of certain things to be done by B, is within the statute of Frauds, and must be in writing in order to support an action. An agroement between A. and B. that A. shall .serve B. five years, in consideration of certain •things to be done by B. is within the statute o-f Frauds, and must be in writing in order to support an action.

APPEAL from Jackson circuit court. The court below erred im permitting the verbal’contract to be given in evidence, and in refusing to grant a •new trial, for the reason that said contract was not to be .performed within a year from the makingof the same; it was in the statute of frauds and void. — See Blanton v.Knox, 3 Mo. Rep. 342; Chi tty on Contracts, 208-9; X Barnwell and Alderson’s Reports, 723. The court erred ¡in refusing to arrest the'judgment, because the j*ury in their verdict assessed the damages without finding the issue joined between the parties. We insist the court dec’ded correctly in all its decisions. The declaration" has at least some good counts in it, nnd'therefore the motion in arrest for the badness of the •declaration must fall, and this is too plain to require proof. That whether the next friend was duly appointed cannot be taken advantage of in arrest, because it does not affect the judgment, and does not form a part of the declaration, and therefore is not reached by a motion to arrest. A judgment on an attachment may be had with-out an affidavit, and yet the judgment is good till you reach the affidavit and set it aside on motion — see the ■case of Hayden v. Alexander, 2 vol. Mo, Rep. So would a judgment be good after a defective affidavit, to hold to bail for the same reasons. The verdict is perhaps not very formal, but it is substantial; it is a finding for the plaintiff $-372 in damages — see the statute on these subjects, Digest, 468, &c. The court did right in permitting the evidence, because it exactly supported the 4th count •in terms, and the 3d and 5th counts substantially; it being admissible as to the 4th count, because it was in the very terms of that count, it cannot be objected as to the others. The defendant should have-demurred to the 4th coant if .not good, and not do as he did, go to trial on the general issue; and so, for the same reason, the motion to-exclude was wrong. The first instruction asked, and refused, asserts that the proof of the 4th count in terms does-not bind the defendant, because the plaintiff, being an infant, could not •make-an agent. This is the first time that lever heard ■of a defendant pleading the infancy of the plaintiff to an ^executed contract; even supposing this to have been a plea relying upon that defence, it would certainly meet with but little favor on account of justice, nor do I believe such a plea has ever been pleaded; especially where the contract has been fulfilled by the infant. There might be such a defence as this perhaps, where the infant agreed to perform a certain act and had failed, and ¡refused to perform his part, and protected himself ¡wader his .plea-of infancy. Then if the defendant’s contract was expressly limited, on the performance of the infant, in that case the adult might show a refusal, &c. to show the contract void; but if the adult’s perform-anee of his part of the contract did not depend in terms for its performance on the previous performance of the infant, even then, 1 apprehend, he would have to go into •equity for relief. But here there is no pretence for showing this, when the adult has received his (whole) stipulated benefit of the contract; .then to say, in excuse for his failure to perform his part of the agreement, that the plaintiff was loo young, is a doctrine which is more •monstrous than any I have been called to answer. It strikes at the very root of the support of those infants; young men of twenty years of age, who are so unfortunate as to have no father or mother, or guardian, to make a contract for them — a doctrine which,if adopted in any civil code, would at once give the strongest evidence of the knavery of the law-making power. The other instructions asked are in the same spirit, and were properly overruled.