Long v. Long

This is an appeal from the judgment taken within sixty days .after its rendition.

The respondents’ objections to the consideration of the bill of exceptions are without merit. The proposed bill and the proposed amendments thereto were not delivered to the clerk for the judge within the time required by section 650 of the Code of Civil Procedure, but it appears that they were mailed to the clerk in due time and that they did not reach him because they were lost in transmission through the mail. Upon motion, after due notice as the record recites, the court after-wards made an order relieving the appellants of this omission and permitting the bill and amendments to be then filed,

The case involves a breach of an alleged agreement to execute a sub-contract for the carriage of the United States mails on two mail routes. The acts of Congress provide that a mail contractor under the United States will not be permitted to sublet or transfer his contract without the consent in writing of the postmaster-general, and that when such consent is obtained, the sub-contract between the contractor and his transferee must be in writing, and a copy thereof must be filed in. the office of the second assistant postmaster-general. Thereupon the amount thereby agreed to be paid to the sub-contractor is to be retained out of the amount due the original contractor and is to be paid by the post-office department direct to the sub-contractor, and the remainder only is paid, as before, to the original contractor. (Act of May 17, 1878, 20 U. S. Stats. 62, secs. 2 and 3, [Comp. Stats. 1901, p. 2704].) There is a further provision in the act of May 4, 1882, that where a mail contract is sublet for less than the sum fixed in the original contract, the postmaster-general may, at his discretion, cancel the original contract and enter into a contract directly with such sub-contractor. (22 U. S. Stats. 53, [Comp. Stats. 1901, p. 2706].) This, however, did not occur in the present case. The latter statute is stated only to illustrate the intention of the parties.

The following is a statement of the facts alleged in the complaint.

The plaintiffs had two contracts with the United States for the carrying of mails on two certain mail routes, one for thirteen hundred dollars per year and the other for $980 per year, each payable monthly. The contracts were for four years, beginning July 1, 1906, and ending July 1, 1910. The plaintiffs were partners in the livery business at Susanville, where they resided, and they had the necessary outfit of horses and vehicles for carrying the mails and performing the contract. About February 1,1907, plaintiffs and defendants made an oral agreement that defendants would perform the service of carrying the mails on both said routes for the remaining time of the contracts for the sum of seventeen hundred dollars per year, and that as soon as the consent of the postmaster-general could be obtained the defendants would exe

The answer avers that these several ■ agreements were oral and were, consequently, void, under section 1624 of the Civil Code. The court made no finding as to the fact that they were oral, but it did find the conclusion that they were not void under section 1624. The evidence, however, shows without conflict that they were not in writing and the respondents concede the fact. In our consideration of the case we must therefore assume that the contracts were not in writing, and determine whether or not an action will lie upon an oral contract of this nature.

The principal point made by the respondents in favor of the judgment is that the oral contract was partly performed and that, in consequence thereof, it was taken out of the statute of frauds. This contention cannot be maintained. The case in this particular is not distinguishable from the case of Seymour v. Oelrichs, 156 Cal. 793 , [ 134 Am. St. Rep. 154 , 106 Pac. 88 ], In that case the effect of an oral contract between Seymour and the defendants whereby they agreed to employ him for the period of ten years and to put the contract in writing, was considered. Seymour had commenced the employment and had served a number of months thereunder, for which he had received the stipulated compensation. The court declared that such part performance was not sufficient to make a case in equity for the enforcement of a contract of that character. This is the general rule laid down in all the authorities. (20 Cyc. 290.) The contract in question was in substance an agreement whereby the defendants undertook to perform the work which the original contracts required to be done by the plaintiffs. It did not relate to real estate nor to the sale of property, and required nothing but the performance of services. Part performance of such contracts, where entire performance is not to be made within a year, does not take the contract out of the statute. The refusal of the defendants to execute the written contracts does not constitute fraud within the rule that the statute of frauds will not be enforced where the effect would be to perpetrate a fraud. (Feeney v. Howard, 79 Cal. 529 , [ 12 Am. St. Rep. 162 , 4 L. R.

In the district court of appeal it was held that the circumstances of the case were such that the defendants were estopped to set up the invalidity of the contract. This was based chiefly on the authority of Seymour v. Oelrichs, 156 Cal. 793 , [ 134 Am. St. Rep. 154 , 106 Pac. 88 ]. There are essential points in which the facts of that case differ from those in the ease at bar. There Seymour was employed in a position for life at a good salary. This fact was known to the other parties and they orally agreed to employ him for a larger salary for ten years and to execute a written agreement to that effect, and they asked him to give up his life position at once and enter their service under said agreement, which he accordingly did. He was thereby induced by them to change his condition by resigning his former position, which he could not regain, and the other parties were aware of this necessity and of the fact that he resigned his former position in reliance upon their agreement-and promise. Their knowledge of the necessity of his resignation if he entered their service, and of his reliance upon their agreement as an inducement to resign, were held to be essential to the creation of an estoppel preventing them from repudiating their oral agreement an«2 justifying the court in enforcing it. In the 'case at bar, it is not alleged that it was necessary for plaintiffs or either of them to leave S'usanville when they ceased to carry the mails, or that they informed defendants that they intended to do so, or that they intended to change their residence or condition in any respect because of the proposed transfer, or that the defendants had knowledge of any such necessity or purpose. There is no evidence tending to show these facts, supposing them to have been pleaded, except the testimony of J. C. Long that he told the defendants before making the oral agreement that he had to go away because of his wife’s health, and that after the agreement was made they sold two rigs and four horses and took .the other equipment away “on the strength of -the agreement that we made with the defendants.” He did not say that the defendants were informed at the time of making the agreement that they intended to

Section 1973 of the Code' of Civil Procedure provides that evidence of a contract which by its terms is not to he performed within a year from the making thereof cannot be received without the writing or secondary evidence of its contents, and that such contract must be in writing to be valid. The defendants objected to the evidence of this agreement, on the ground that it was incompetent evidence of such an agreement. The objection was well taken and it should have been sustained. We do not deem it necessary to discuss or consider the other points suggested by the appellants.

The judgment is reversed.

Angellotti, J., Lorigan, J., Henshaw, J., and Melvin, J., concurred.