Peck v. McCormick Harvesting Machine Co.

Mr. Justice Carter

delivered the opinion of the court:

Inasmuch as there is no plea of failure of consideration, wholly or in part, we need not consider whether the consideration for the note sued on had failed or not. The case was tried on the general issue, and no question is raised on the pleadings. The questions presented by counsel are, whether there was such an oral contract between Chapman and appellee as is alleged by appellant, and if there was, whether it was void, as in violation of the Statute of Frauds. Appellant insists there was such a contract, and that he is entitled to recoup to the extent of the damages sustained by Chapman caused by appellee’s breach of such contract in invading Chapman’s territory in 1897 and in refusing to make a contract with him for 1897. Appellee insists that the oral contract was incomplete and was too indefinite to be enforced, but that if it were considered sufficiently definite, still, neither party could perform it within one year, and that the contract being within the Statute of Frauds, no suit could be maintained for a breach of it and no recoupment could be had in this action.

It is clear that the contract could not have been performed within the year. We are therefore unable to see how the defendant could have damages by way of recoupment for the breach of it by the plaintiff. (McGinnis v. Fernandes, 126 Ill. 228; Butcher Steel Works v. Atkinson, 68 id. 421.) Giving the appellant full benefit of all the testimony in the case, he has proved only an oral contract within the Statute of Frauds, and has consequently presented no legal defense to the action, even if such contract were considered sufficiently definite to be otherwise enforceable. It follows that there was no error in instructing the jury to find for the plaintiff the amount due on the note.

The judgment will be affirmed.

Judgment affirmed.