Fox v. Fifth West, Inc.

MR. JUSTICE CASTLES

(dissenting):

I dissent and shall briefly state why without fully developing the situation.

The result here would seem to be a penalty exacted against, the defendant for the performance of the contract in failing, to-place the proper amount of steel. The steel was on the job,, and the failure to place it properly was a mistake — apparently an honest one. Later, however, when the discovery was made, Hedreen even discussed burying it. This after the fact attempt or consideration of concealment became a reflection on the character of the defendant; and quite naturally was exploited by the defendant.

However, putting aside agreements for paying for moving the trailer, the plaintiff alleged an oral contract of employment for a period of one year. On the pre-trial order, no reference to the length of the government contract was permitted; and consistent with that pre-trial order, the defendant was not allowed to cross-examine on the date of the 360 day contract, the date of the notice to proceed and the receipt of the notice to proceed. At the time of the employment contract between plaintiff and defendant these matters were very important because by their very terms, the contract sued upon was not to be performed within one year and would be controlled by the statute of frauds. If the reliance were on the part performance to take the claim out of the statute of frauds, then the trial court was in error in refusing instructions on that.

Even the majority opinion here finds fault with almost every ruling discussed, but concludes that it was “harmless error”, “error was harmless”, “not a model to be followed”. I believe there were prejudicial errors committed, and that the defendant is entitled to a new trial.