Boone v. Coe

OPINION OF THE COURT BY WILLIAM ROGERS CLAY, COMMISSIONER--Affirming. Plaintiffs, W. H. Boone and J. T. Coe, brought this action against defendant, J. F. Coe, to recover certain damages alleged to have resulted from defendant's breach of a parol contract of lease for one year to commence at a future date. It appears from the petition that the defendant was the owner of a large and valuable farm in Ford County, Texas, Plaintiffs were farmers, and were living with their families in Monroe County, Kentucky. In the fall of 1909, defendant made a verbal contract with plaintiffs whereby he rented to them his farm in Texas for a period of twelve months, to commence from the date of plaintiffs' arrival at defendant's farm. Defendant agreed that if plain-tiffs would leave their said homes and businesses in Kentucky, and with their families, horses and wagons, move to defendant's farm in Texas, and take charge of, manage and cultivate same in wheat, corn and cotton for the twelve months next following plaintiffs' arrival at said farm, the defendant would have a dwelling completed on said farm and ready for occupancy upon their arrival, which dwelling plaintiffs would occupy as a residence during the period of said tenancy. Defendant also agreed that he would furnish necessary material at a convenient place on said farm out of which to erect a good and commodious stock and grain barn, to be used by plaintiffs. The petition further alleges that plaintiffs were to cultivate certain portions of the farm and were to receive certain portions of the crops raised, and that plaintiffs, in conformity with their said agreement, did move from Kentucky to the farm in Texas, and carried with them their families, wagons, horses and camping outfit, and in going to Texas they traveled for a period of 55 days. It is also charged that defendant broke his contract, in that he failed to have ready and completed on the farm a dwelling house in which plaintiffs and their families could move, and also failed to furnish the necessary material for the erection of a suitable barn; that on December 6th, defendant refused to permit plaintiffs to occupy the house and premises, and failed and refused to permit them to cultivate the land or any part thereof; that on the. . . . day of December, 1909, they started for their home in Kentucky, and arrived there after traveling for a period of four days. It is charged that plaintiffs spent in going to Texas, in cash, the sum of $ 150; that the loss of time to plaintiffs and their teams in making the trip to Texas was reasonably worth $ 8 a day for a period of 55 days, or the sum of $ 440; that the loss of time to them and their teams during the period they remained in Texas was $ 8 a day for 22 days, or $ 176; that they paid out in actual cash for transportation for themselves, families and teams from Texas to Kentucky, the sum of $ 211.80; that the loss of time to them and their teams in making the last named trip was reasonably worth the sum of $ 100; that in abandoning and giving up their homes and businesses in Kentucky, they had been dam-aged in the sum of $ 150, making a total damage of $ 1,387.80, for which judgment was asked. Defendant's demurrer to the petition was sustained and the petition dismissed. Plaintiffs appeal. Under the rule in force in this State, the statute of frauds relates to the remedy or mode of procedure, and not to the validity of the contract. Though the land is located in Texas, the parol contract of lease was made here, and here it is sought to enforce it. If unenforceable under our stat-ute, it cannot be enforced here. Kleeman & Co. v. Collins, 9 Bush 460. If the statute requires the contract to be in writing, and the petition does not allege it to be in writing, defense may be pre-sented by demurrer. . . .

The statute of frauds, section 470, sub-sections 6 and 7, Kentucky Statutes, provides as follows:

"No action shall be brought to charge any person: "6. Upon any contract for the sale of real estate, or any lease thereof, for longer term than one year; nor "7. Upon any agreement which is not to be performed within one year from the making thereof, unless the promise, contract, agreement, representation, assurance, or ratification, or some memorandum or note thereof, be in writing, and signed by the party to be charged therewith, or by his authorized agent; but the consideration need not be expressed in the writing; it may be proved when necessary, or disproved by parol or other evidence."

A parol lease of land for one year, to commence at a future date, is within the statute. . . .

The question sharply presented is: May plaintiffs recover for expenses incurred and time lost on the faith of a contract that is unenforceable under the statute of frauds?

In the case of Bromley, et al. v. Broyles . . ., it was held that a tenant with a parol agreement for a lease for another year, which was within the statute of frauds, could not recover as damages for breach of the contract the loss sustained by him in making preparations for raising a crop.

In the case of King v. Cheatham, . . . King sued upon a writing signed by himself alone, in which he bound himself to buy from Cheatham certain trees standing on her land, to be severed in the future. It appears that he cut some 263 trees from the land before he was ousted. He asked damages for his labor and profit. There was a judgment below for defendant. On appeal the judgment was affirmed. In discussing the validity of the contract, and the right of plaintiff to recover damages thereon, the court said: "The statute merely withholds a right of action upon them as against the party who has not signed them. The prohibition of the statute must reach the spirit of its purpose. As a suit to recover damages for the breach of such a contract would be an indirect enforcement, such actions are held to be within the inhibition of the statute. . . . Nor does part performance of the party signing affect the matter. . . .

The same doctrine is applied in the case of Greenwood v. Strother, supra. Indeed, it is the general rule that damages cannot be recovered for violation of a contract within the statute of frauds. . . .

To this general rule there are certain well recognized exceptions. Thus, [and the Court goes on to cite several cases], it has been held that where services have been rendered during the life of another, on the promise that the person rendering the service should receive at the death of the person served a legacy, and the contract so made is within the statute of frauds, a reasonable compensation may be recovered for the services actually rendered. It has also been held that the vendee of land under a parol contract is en-titled to recover any portion of the purchase money he may have paid, and is also entitled to compensation for improvements. . . .

And under a contract for personal services within the statute, an action may be maintained on a quantum meruit. Kleeman v. Collins, 9 Bush 460; Myers v. Korb, . . . The doctrine of these cases proceeds upon the theory that the defendant has actually received some benefits from the acts of part performance, and the law, therefore, implied a promise to pay. In 29 Am. & Eng. Encyc., 836, the rule is thus stated: "Although part performance by one of the parties to a contract within the statute of frauds will not, at law entitle such party to recover upon the contract itself, he may nevertheless recover for money paid by him, or property delivered, or services rendered in accordance with and upon the faith of the contract. The law will raise an implied promise on the part of the other party to pay for what has been done in the way of part performance. But this right of recovery is not absolute. The plaintiff is entitled to compensation only under such circumstances as would warrant a recovery in case there was no express contract, and hence it must appear that the defendant has actually received or will receive some benefit from the acts of part performance.

It is immaterial that the plaintiff may have suffered a loss because he is unable to enforce his contract." . . .

In the case under consideration, the plaintiffs merely sustained a loss. Defendant received no benefit. Had he received a benefit, the law would imply an obligation to pay therefor. Having received no benefit, no obligation to pay is implied. The statute says that the contract of defendant made with plaintiffs is unenforceable. Defendant, therefore, had the legal right to decline to carry it out. To require him to pay plaintiffs for losses and expenses incurred on the faith of the con-tract without any benefit accruing to him would, in effect, uphold a contract upon which the statute expressly declares no action shall be brought. The statute was enacted for the purpose of preventing frauds and perjuries. That it is a valuable statute is shown by the fact that similar statutes are in force in practically all, if not all, of the states of the union. Being a valuable statute, the purpose of the law-makers in its enactment should not be defeated by permitting recoveries in cases to which its provisions were intended to apply.

The contrary rule was announced by this court in the case of McDaniel v. Hutchinson. . . . There the plaintiff lived in the State of Illinois. The defendant owned a farm in Mercer County, Kentucky. The defendant agreed with plaintiff that if plaintiff and his family would come to Kentucky and live with defendant, the defendant would furnish the plaintiff a home during defendant's life, and upon his death, would give plaintiff his farm. It was held that although the contract was within the statute of frauds, plaintiff could recover his reasonable expenses in moving to Kentucky, and reasonable compensation for loss sustained in giving up his business elsewhere. Upon reconsideration of the question involved, we conclude that the doctrine announced in that case is not in accord with the weight of authority, and should be no longer adhered to. It is therefore overruled.

Judgment affirmed.