Chevalier v. Lane's, Inc. ( 1948 )

The result, as I see it, is right. The better view seems to call for a departure from so much of the Wood case as takes a contract not to be performed within a year out of the operation of the statute of frauds merely because one of the parties might die within the year. But the holding of the main opinion goes further than I think necessary or proper and cites Paschall v. Anderson, without challenging its holding that full performance of peresonal services under an oral contract not to be fully performed within a year does not take the contract out of the bar of the statute and entitle the employee to recover what his employer had agreed to pay him. In such a case the employee has done the work and there is nothing left for his employer to do but pay what he had promised. This he should be made to do. It is reasoned in this connection that the statute was meant to prevent, not to aid, the perpetration of a fraud. Now the case at bar involves partial performance of a statutorily inhibited oral contract for personal services. The main opinion correctly holds in effect that in the absence of special equitable considerations, none of which appear here, partial performance by the employee will not bar the employer from raising the statute as a defense. The employee's remedy is ordinarily a suit for the reasonable worth of his services, or, put another way, in quantum meruit. The employee did not show himself entitled to a recovery on this basis. The judgment was rightly against him.

But there is no need to cite or rely on Paschall v. Anderson, which not only involves a different fact situation but is, I submit, against the great weight of authority and much the better reasoning. When a state of facts like that in Paschall v. Anderson arises, it is my hope that this court will not regard the opinion as authoritative. Overruling the Wood case places Texas in line with the more widely accepted rule that the possibility of death does not take a contract like the one in this case out of the statute of frauds. If at the same time we departed from Parchall v. Anderson, it would finish the task of lining Texas up with definitely the majority as well as what I think much the better view that full performance by the employee or an oral contract required by the statute of frauds to be in writing because not to be performed within a year takes the contract out of the statute. Diamond v. Jacquith, 14 Ariz. 119,125 P. 712, L.R.A. 1916D 880 and note beginning at p. 890; 49 Am. Jur., Statute of Frauds, sec. 554; 37 C.J.S., Statute of Frauds, sec. 251; 20 Tex. Jur., Statute of Frauds, sec. 50; Restatement of Contracts, sec. 198. Perhaps, because of differing facts, this case is not the right occasion for overruling Paschall v. Andereson. What I earnestly hope is that the correctness of that decision will be deemed open for further consideration in this State.

Opinion delivered June 30, 1948.

ON MOTION FOR REHEARING.