Baltimore Breweries Co. v. Callahan

Contracts— Year Clause of the Statute of Frauds. Where it appears upon the face of a contract that it can possibly be performed, upon the happening of a contingency, within one year from the time of making, it is not within the fourth section of the Statute of Frauds. In contracts within that section, it is sufficient if the consideration can be implied with certainty from the instrument itself. A contract in writing dated Sept. 5, 1893, and signed by the parties, stated that the defendant had employed the plaintiff for the term of one year, beginning on-day of Sept., 1893, and ending on the —— day of Sept., 1894, at a certain salary. The day for the beginning of the service was left blank because plaintiff did not know when he would be released from the service of a third person, who then employed him. Plaintiff afterwards informed defendant that he could not begin work under the contract until Sept. n. After entering upon the stipulated employment plaintiff was discharged. In an action on the contract, Held, 1st. That if the plaintiff had been released by his former employer on Sept. 5, he could have begun his service with the defendant on that day, and the contract was therefore not within the year clause of the Statute of Frauds. 2nd. That if the contract were within the statute, yet the above memorandum was a sufficient statement of the consideration, because a promise on the part of the plaintiff to render the service is implied from the language of the agreement.

Appeal from the Superior Court of Baltimore City (Ritchie, J.) Callahan, the plaintiff, made a contract with the Baltimore Breweries Company to be solicitor of trade for the Spring Gardens Brewery for one year, at a salary of $1,560. The company discharged him before the expiration of the year and he brought suit alleging an unlawful discharge. The defences on the merits were, 1st, that he had not properly performed his duties, and the discharge was lawful; and 2d, that he had accepted $30 in accord and satisfaction of his claim. The first defence on the merits was left to the jury by an instruction of the Court, which took the place of the defendant’s second prayer. This instruction was not excepted to. The second defence on the merits was left to the jury by defendant’s first prayer, which was granted. The jury found for the plaintiff on both these points. The only other defence was that the contract was one which came within the fourth section of the Statute of Frauds, and there was not sufficient evidence to gratify the statute. The contract was as follows: “ This agreement, made this 5 th day of September, in the year one thousand eight hundred and ninety-three, between ‘ The Baltimore Breweries Company, Limited,’ a corporation of the city of Baltimore, in the State of Maryland, conducting the Spring Gardens Brewery of Baltimore, in the State of Maryland, of the one part, and Joseph H. Callahan of Baltimore City, State of Maryland, on the other part. Witnesseth, that the said The Baltimore Breweries Company, Limited, has employed the said Joseph H. Callahan for the term of one year, beginning on the-day of September, in the year 1893, and ending on the-day of-, 1894, to serve as solicitor of trade for said Spring Gardens Brewery; and the said The Baltimore Breweries Company, Limited, has agreed to pay to the said Joseph H. Callahan, as salary of said term of one year, the sum of fifteen hundred and sixty dollars, payable in regular weekly installments of thirty dollars each during said term. And the said The Baltimore Breweries Company, Limited, further agree to pay, besides said weekly salary, all the expenses which said Joseph H. Callahan may incur in the legitimate pursuit of his duties as solicitor of trade for said Spring Gardens Brewery. Witness the hand,” etc. The jury rendered a verdict for the plaintiff for $1,056.42, and from the judgment thereon, the defendant appealed. The questions of law in this case are: (1.) Was the contract between Gray and Callahan one not to be performed within a year, and within the Statute of Frauds ? (2.) If so, was the writing offered in evidence sufficient to meet the requirements of the statute ? The first question has been a frequent subject of discussion in other jurisdictions, but so far has never come directly before this Court. The doctrine may be considered now as settled that a contract for a year’s service, or a year’s employment to begin on a future day is within the Statute of Frauds. The agreement of Gray with Callahan, made on Tuesday, September 5th, that the Breweries Company should employ Callahan for a year, to begin on some day in September, of which day Callahan should definitely inform Gray on Saturday, the 9th of September, was a contract that could by no possibility be performed in a year. Obviously, the year’s service, by this agreement, could not begin before Saturday, September 9th, 1893, at the earliest. And the contract could not be performed before September 9th, 1894 — one year and four days from its date. In Brace-girdle v. Heald (1 B. & Ald. 727), it is distinctly decided that a contract for personal service, made on April 27th, to last 12 months from the 30th of June next, was within the 4th section of the Statute of Frauds. Following this decision are the cases of Hinckley v. Southgate, 11 Vt. 428; Nones v. Homer, 2 Hilt. 116; Dickson v. Jacques, 31 U. C. Q. B. 141; Harper v. Davies, 45 U. C. Q. B. 445; Oddy v. James, 48 N. Y. 685; Hearne v. Chadbourne, 65 Me. 302; Lee’s Admr. v. Hill, 87 Va. 497; Snelling v. Lord Huntingfield, 4 Tyr. 606; Amburger v. Marvin, 4 E. D. Smith, 395; McElroy v. Ludlum, 32 N. J. Eq. 836; Schumate v. Farlow, 125 Ind. 359; Haynes v. Mason, 30 Ill. App. 87; Kelley v. Terrell, 26 Ga. 551; Turnow v. Hochstadter, 7 Hun. 80; Blanck v. Littell, 9 Daly, 268; Kleeman & Co. v. Collins, 9 Bush, 460; Britain v. Rossiter, 11 Q. B. Div. 123; St. Sutcliffe v. Atlantic Mills, 13 R. I. 480. Looking critically at the writing, we see that the terms set out in it express not the least consideration for the obligations assumed therein by the Breweries Company. First, the Breweries Company employs Callahan for one year to serve as solicitor of trade. Secondly, the Breweries Company agrees to pay Callahan a fixed salary. Thirdly, the Breweries Company agrees to pay such legitimate expenses as Callahan may incur as solicitor of trade. Callahan on his part, as far as the writing goes, undertakes nothing. He does not agree to stay in the service of the Breweries for a year. He does not agree to leave The American and enter their service. Probably the consideration for the Breweries agreement to employ him for a whole year, was his agreement to give up his work on The American and enter their service, yet this is not stated in the writing. He says that he did agree with Gray to serve for a year, but this is not in the writing. “Judged by the common law,” this “contract” contains no evidence of consideration.,, If Callahan had received a better offer on October 1st, 1893, and had quitted the service of the Breweries, they would have had no recourse against him under this writing. As far as the writing goes, all was optional with Callahan. From no part of it does he appear to have agreed to come to the Brewery, or to stay with the Brewery. Suppose The American had offered him $35.00 a week to stay in its service and he had accepted the offer and returned the paper to Gray. Or suppose, having commenced to serve the Brewery, he had been offered a better position elsewhere, and had left the Brewery after two months. In either case, what redress would the company have had under the writing? Whatever Callahan in fact agreed to do, he signed his name to a paper which bound him to do nothing. Sykes v. Dixon, 9 Ad. & E. 693; Lees v. Whitcomb, 5 Benj. 314; Frank v. Miller, 38 Md. 460; Wood on Stat. of Frauds, sec. 346; Dorsey v. Packwood, 12 How. 136; Marcy v. Marcy, 9 Allen, 81; Pierce v. Paine, 28 Vt. 34; Meek v. Gass, 2 Russ. & Ch. (Nova Scotia), 247; Emery v. Smith, 46 N. H. 151; Ham v. Goodrich, 37 N. H. 186; McElroy v. Ludlum, 32 N. J. Eq. 828; Whipple v. Parker, 29 Mich. 374; Kleeman v. Collins, 9 Bush. 461; Warner v. T. & P. R. R., 54 Fed. Rep. 922; Oddy v. James, 48 N. Y. 685.