Thelberg v. National Starch Manufacturing Co.

Before discussing the main question argued on this appeal, namely, that of the application of the Statute of Frauds, it will be well to notice the claim by the defendant that the plaintiff failed to prove any contract on the part of the defendant to employ him for a term of years ending April 1,. 1894. Though it appears from a provision, of the contract that should the said company at any time for any reason discontinue its business, said company might at its option Rave declared the agreement void, it is clear, as a matter of fact

The complaint alleges that the Glen Cove Manufacturing Company was absorbed by the defendant. We suppose that means that the two companies were in some way consolidated and the business transacted by the Glen Cove Manufacturing Company continued by the defendant; but it appears that after such consolidation the plaintiff continued to perform the same work for the defendant that he had performed for the Glen Cove Manufacturing Company. He testified that he was told by the superintendent of the defendant that the contract held good with the new company the same as with the old company. It was this statement that the jury believed, and under this statement it was competent for the jury to find that when the defendant “ absorbed ” the Glen Cove Manufacturing Company it absorbed its assets, and at the same time bound itself to ca!rry out its contract to discharge its liabilities. Under the plaintiff’s contract with the Glen Cove Manufacturing Company there was an obligation on behalf of the company to employ the plaintiff for a-term of .five years, unless that company discontinued 'its business, when the company could, at its option, declare the agreement void. The Glen Cove Company’s business and assets Avere transferred to this defendant. The Glen Cove- Company did not declare the agreement void, and the defendant expressly agreed Avith the plaintiff that the contract held good with the new company, Avhich was simply assuming with the assets of the old company one of its liabilities.

The contract gave the Glen Cove Company the option to declare the agreement void, and unless that option was exercised by the Glen Cove Company, the agreement remained in full force and effect; and it is not claimed that the Glen Cove Company ever exercised that option. It is only necessary to prove in this action, to entitle the plaintiff to recover, that the defendant assumed in some way the existing liability of the Glen Cove Company to carry out this contract -with the plaintiff; and if the eAndence of the plaintiff is to be believed, such an agreement was made

Assuming that the agreement of the defendant to adopt the contract between the plaintiff and the Glen Cove Company was one that was jreauired by the Statute of Frauds to be in writing—although we

The complaint expressly alleges the two contracts made by the Glen Cove Company, copies of which are annexed thereto.' It then ■ alleges that the plaintiff was notified by the defendant of the .consolidation of the two companies,. “ and that thereafter his employment would be by said defendant at the yearly salary of $2,500, and upon the same terms and condition's set forth in .said Contracts ‘ A ’ and B,’ which said., salary the defendant agreed to pay and employment it ratified.”- The- a-nswpr denies this allegation. The Statute of Frauds, however, is not'jii'daded, nór is it alleged in the answer that if this agreement was made by the defendant it was ■invalid or illegal for any reason. The pleadings present the one issue as to whether or not the defendant did assume, the obligation of the Glen Cove Company to employ this plaintiff as provided in the agreement between that cómpany and this .plaintiff., That was ■ the only question raised by the pleadings, and that was the question to be tried.

When the plaintiff was examined as á witness and asked to detail the conversation between himself and the superintendent of the defendant,-that was objected to by the defendant. Ho ground was stated in the objection and the point was not then, taken that this testimony was invalid under the Statute of Frauds to prove a con- ■ tract which was not to be performed within one_year. The attention of the court was not directed by any objection, to the evidence that the contract contravened the statute, and as the statute has not been pleaded, it is clear that such an objection is unavailing on-appeal. Plaintiff testified that the superintendent said “ that my contract held good with the new company, the same as with the old company.” To that there was no objection, the only objection having been the former one taken by the. defendant, with no ground, specified and no attention called to this statute as the ground of the objection, nor the objection that the testimony itself was incompetent to prove the agreement alleged in the complaint taken.

It is now settled in this State that the Statute of Frauds cannot be taken- advantage of as a defense to an action upon a contract which, is required by that statute to be in writing,, Unless notice is

Here there was an existing contract between the plaintiff and the Glen Cove Company. There was an express agreement between the plaintiff and the superintendent of the defendant that this contract should continue and be assumed by the defendant. That contract was sued upon ; evidence was admitted without raising the specific objection of the Statute of Frauds ; the Statute of Frauds was not pleaded in the action. It followed that, the defendant having waived the statute, the case was properly submitted to the jury, and that upon its verdict the plaintiff was entitled to judgment. There does not seem to be any errcr made as to the admission or rejection of testimony, and, we think, the judgment was right and should be affirmed, with costs.

Van Brunt, P. J., Williams and O’Brien, JJ., concurred.

Judgment affirmed, with costs.