Gulfport Cotton Oil, Fertilizer & Manufacturing Co. v. Reneau

Statute of Frauds. Code 1906, § 4775 (<f). Agreement not to be performed within one year. Contract of employment to begin in future. Memorandum. Several writings. Case. Under the statute of frauds, Code 1906, § 4775 (d), providing that an action shall not be brought whereby to charge a defendant or other party upon any agreement which is not to be performed within the space of one year from the making thereof, unless the promise or agreement, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some person by him or her thereunto lawfully authorized:— (а) A verbal contract of employment to begin in the future and continue for one year thereafter is within the statute; and (б) A memorandum of a contract, to make it enforceable, must include all the material matters of the agreement, so that resort to parol testimony will be unnecessary, except to show the situation of the parties and the application of the terms used in the writing to the subject-matter; and (c) The memorandum must be signed as provided in the statute; and (d) While the memorandum may consist of several distinct writings, and all of them need not be signed by the party to be charged, they must so relate that the one signed by the party to be charged can be held to be an approval of the unsigned ones in order to bind him to the terms of the contract set forth in them; and (e) The statement in a letter from defendant, responding to one from the plaintiff detailing the terms of the unenforceable verbal contract of employment, in these words, “As for the talk I had with you when you applied for the situation, I expected much from you; that is why I offered you a large salary,” was not a consent to the terms of the contract as detailed in plaintiff’s letter, and the two writings did not take the case out of the statute; and (£) The statute of frauds does not require that the writing shall - be executed at any special time before it is offered in evidence.

From the circuit court of Harrison county. Hon. William H. Hardy, Judge. Reneau, appellee, was plaintiff in the court below, and the Gulfport, etc., Co., appellant, was defendant there. From a judgment in plaintiff’s favor defendant appealed to the supreme court. The facts are fully stated in the opinion of the court. The court below seems to have proceeded upon the idea that a verbal contract for more than a year is enforceable if the plaintiff does not depend altogether upon spoken words; and that he can recover if he can offer any corroborative written evidence that a contract was made. But the statute requires that the contract itself shall be in writing or some memorandum thereof sufficient in itself to evidence the contract in all its terms. Waul v. Kvrlcman, 27 Miss. 828; McGuire v. Btevenson, 42 Miss. 724, 730; Franlc v. Fllringham, 65 Miss. 281, 3 South. 655. The letters regarded for the present as being sufficiently connected to be treated as one writing do not contain the terms of the contract nor of any contract. It does not appear from these writings (1) what Reneau was to do, (2) where he was to work, (3) by whom he was to be paid, (4) how long he was to work, (5) whether his services were to be satisfactory to his employer, (6) whether he was to prove himself to be an expert machinist, (7) when his services were to begin. Not one of the substantial terms of the contract is plainly shown by these writings. The statute requires the memorandum necessary to save a parol contract of this kind to be “signed by the party to be charged.” Now the only writing which mentions the contract in the remotest way is the letter signed by Reneau of date May 18, 1907. It is not signed by Van Winkle, the president of the defendant corporation, the party to be charged. Van Winkle did not write this letter; he did not write out these references-to- the contract; he did not sign any writing containing these references. But it is insisted by the appellee that he is to be held to have, in effect-, signed this writing simply because he answered the letter, as they say, and did not question the correctness of the reference contained in it. This is far-fetched. ■ We recognize the holdings of the courts to the effect that the writings may be in two or more papers-and that the signature of the party charged need not be attached to the paper containing the terms of the contract. These holdings have invariably been made so far as we have been able to learn, in dealing with papers written while negotiations were going on about the making of a contract. They have most frequently been cases in which it appeared that the offers were made in one writing- and acceptance in others. One referred to the other and was based upon the other and got its meaning from the other. They are cases where it was manifestly intended that one should refer to the other and where it was intended by tire party charged to adopt the contents of the writing referred to just as if it were incorporated in the paper signed by him. There are cases, too, where the writing referred to is physically attached to the one signed. But the case at bar is entirely different. Eeneau had been discharged. lie wrote a letter of complaint to the man who had employed and discharged him. At the end of his letter he mentioned the fact that he had a contract “by the year at a stipulated salary of $2,500 by the year.” There was no occasion for Yan Winkle to answer the same and say whether this reference to the contract was correct. It made no difference at that stage of the transaction whether the reference was correct. Yan Winkle was not asked to say whether the statement in Eeneau’s letter was correct; the situation did not require him to express himself; and it cannot be assumed that he did intend to express himself. How could it make any difference to him whether Beneau correctly set out the terms of the contract or not ? The contract was ended. “It is not necessary that the memorandum should consist of a single instrument. Several and distinct writings may bo construed together as containing all the terms of the contract though only one of them be signed by the party to be charged. But such separate writings must expressly refer to each other or be so connected physically or otherwise, as to show unmistakably that they relate to the same transaction. The general rule is that it is not competent to connect the several papers by parol, such evidence being admissible merely to identify one writing to which reference is made in another.” 29 Am. & Eng. Ency. Law, 850. The following are some of the cases decided by this court in which two or more writings have been dealt with: Waul v. Eirkman, 27 Miss. 826 et seq.j Fisher v. Eulm, 54 Miss. 480; Jelks v. Barrett, 52-Miss. 315, 322, 323; McGuire v. Stevens, 42 Miss. 315, 322, 323; Rector Provision Oo. v. Sawyer, 69 Miss. 235, 13 South. 623; Wilkinson v. Taylor etc., Manufacturing Go., 67 Miss. 231, 7 South. 356; Frank v. Eltringham, 65 Miss. 281, 3 South. 655. We may rid ourselves of all complications and make it easy to see whether the contract sued on here is within the statute of frauds, simply by ignoring the oral testimony altogther, as to what the contract was, and examine the writings offered for the purpose of determining whether they embody the substantial terms of the agreement. When we do this we have nothing left to show the terms óf the agreement, as is conceded by counsel for the plaintiff, except the statement in the letter of May 18, 1907, written by Beneau: “My contract with you was fixed by the year at a stipulated salary of $2,500_ by the year and you offered as a further inducement that after removing the plant to Columbia you would make it more interesting to me by lotting me take stock in the business;” and the statement in tbe letter of May 20 written by Yan Winkle: “As for tbe talk had with you, when you applied for the position, I expected much from you, that is why I offered you a large salary.” Consider these two statements together and it cannot be seen what the contract was. It is always competent to show the situation and surroundings of the parties and other particulars in order to apply and construe a written contract. This is especially true where the contract is evidenced by several -writings; as in the case of an .agreement made by correspondence. The rule of admitting such testimony is one of necessity, and was in force long before the statute-of frauds was enacted, and has been universally recognized and applied since the enactment of the statute. Neither this statute nor the rule forbidding parol evidence to vary or contradict a writing, excludes such testimony. “Parol evidence is inadmissible to complete or vary an insufficient writing. But the surrounding circumstances may be shown by parol, and facts established from which the relation of several writings may be inferred.” 12 Enc. of Ev. 7, •citing among other cases Hagan v. Domestic Sewing Machine Go., 9 Hun, N. Y. (16 Sup1. Ct. E.) 73, and also Beckwith v. Talbot, 95 U. S. 289, which is a leading case cited in nearly all the authorities. See also our own c^ses of Wilkinson v. Taylor Mfg. Co., 67 Miss. 231, 7 South. 356; Tufts v. Greemuald, •66 Miss. 360, 6 South. 156. In the case of Beckwith v. Talbot above, the supreme court of the United States uses the following language: “It is undoubtedly a general rule that collateral papers, adduced to supply the defects of signatures of a written agreement under the statute of frauds, should, on their face, sufficiently demonstrate their reference to such agreement without the aid of parol proof. But the rule is not absolute. Johnson v. Dodgson, 2 Mees. & W. 653; Salmon Falls v, Goddard,, 14 How. 446. There may be eases in which it would be a violation of reason and common sense to ignore a reference which derives its significance from such proof. If there is ground for any do-ubt in the matter, the general rule should be enforced. But where there is no ground for doubt, its enforcement would aid, instead of discouraging, fraud.” In the light of this well established and reasonable rule, look at the facts. Van Winkle was the president and principal owner of an oil mill. Reneau, the appellee, was an oil mill man, his business being to manage oil mills, and he was skilled and experienced in that business. Van Winkle desired to employ him to manage his mill, and did so at an agreed salary of $2,500 per annum. Reneau went to work under the agreement and worked nearly a month, when, without cause, he was discharged. Thereupon on April 18, 1901, in answer to a letter of that date discharging him, he wrote Van Winkle a rather lengthy letter about this matter, among other things, stating therein as follows: “My contract with you was fixed by the year, at a stipulated salary of $2,500 by the year and you offered as a further inducement that after removing the plant to Columbia, you would make it more interesting to me, by letting me take stock in the-business.” In this letter he also asked for “a settlement.” Two days later Van Winkle replied directly to this letter, making some-complaint of the manner in which Reneau had discharged the duties, and among other things used the following language: “As for the talk I had with you when you applied for the position I expected much from you. That is why I offered you a large salary.” He also stated in answer to the request for a settlement, that as soon as Mr. Danee would return “you can have an immediate-settlement.” These letters bear inherent evidence of a reference, one to the other. No reasonable mind, after reading the whole of the letters and knowing the relation and situation of the parties, would reach any other conclusion. The parol proof, which the ■court below admitted, was not for the purpose of adding to the terms of the agreement as set forth in this correspondence, but simply to apply the references in the letters, the one to the other, and to show the situation and relation to the parties and the surrounding circumstances. In the ease of 'WiUcvnson v. Taylor Mfg. Co., 67 Miss. 231, '7 South. 356, Judge Campbell, speaking for the court on this subject, uses the following language: “If the paper signed hy the party to be charged makes such reference to the other writings as to enable the court to construe them together as constituting all the terms of the bargain, parol evidence is admissible to identify the paper referred to and •apply the references. , 1 Benji. on Sales, secs. 220, 221; Reed ■on Stat. of Frauds, see. 311 el seq.” In Jellcs v. Barrett, 53 Miss. 315, cited by opposite counsel, a great deal of parol testimony was admitted for the purpose of showing the existence and identity of certain maps and other papers and what was done with them, and the relation and situation of the parties, and the court in that case held that the parol proof was competent and sufficient to connect the writings and apply the reference. In answer to the contention that this ■evidence was incompetent and in commenting on the testimony, the court among other things used the following language: “That there should be some conflict and some presumptions necessary to be indulged, is unavoidable.”" This case is cited by opposite counsel, but 'we consider it ■clearly an authority for our contention, as we think the principles applied to the facts are decisive of the question under discussion. There a great deal more parol testimony was admitted and considered than was offered in this case. In the leading case of White v. Breen, 106 Ala. 159, 32 L. R. A. 127, the supreme court of Alabama, in a remarkably clear and philosophical discussion of this question, among other things, uses the following language: “We are of opinion that when all the writings adduced, viewed together, in the light of the situation and circumstances of the parties at the time they were written, show unmistakably that they relate to the same matter and constitute several parts of one connected transaction, so that the mind can come to no other reasonable conclusion, from the evidence so 'afforded, than that they were each written with reference to those concurrent or preceding, then there is such a reference of the one to the other as satisfies the rule, although reference in express terms does not appear. The rule is one founded in reason; and when, as practical men, we look at the writings, and see, inhering in them evidence which entirely satisfies the mind that they all relate to one general transaction, there is no reason why they should not be so considered. There is in such case a direct reference of the one to the other, within the meaning of the law. The application of the principle to the facts of this case will illustrate our meaning. The case of BecJcwiih v. Talbot, 95 U. S. 289, 24 L. Ed. 496, aptly illustrates it. As we understand the rule, it is not necessary that the reference between the writings shall be direct, or in express terms. It is sufficient, if, in viewing the whole of the correspondence, it reasonably appears that it relates to “one general transaction.” It must not be forgotten that the appellee went to work under the contract and worked nearly a month, and this practical construction by the parties is to be considered as an aid in upholding the agreement. As another aid, we invoke the principle expressed in the maxim ut res magis valeat, quam pereat, which requires that the contract be upheld, rather than defeated, if this can be done by reasonable construction and by the application of well-known presumptions and implications of law. Another principle which has direct application is that expressed by the maxim id cerium quod cerium reddi potest. These principles are as old as common law itself. They were in force long before the statute of frauds was enacted in England, and the statute has always been construed and applied in the light of these and other well-known principles of the common law. The laborer is worthy of his hire.