Hendry v. Bird

This was undoubtedly a contract for the sale of goods, wares and merchandise. Hewson v. Peterman Manufacturing Co., 76 Wn. 600,136 P. 1168, Ann. Cas. 1915D 346, 51 L.R.A. (N.S.) 398;Benner v. Billings, 107 Wn. 1, 181 P. 19. That being so, it could be governed only, if at all, by § 5825, Rem. Comp. Stat. [P.C. § 7745]. The employment of respondent was only incidental. He could have quit his employment at any time, and under the decisions of this court as to corporation employees, the corporation could have discharged him at any time. Notwithstanding that, respondent could have paid the full price for the corporate stock the next day, or at any time within one year after the contract was made; or, if he had died within one year, the contract would have been terminated.

Upon the foregoing propositions the majority decision in effect overrules the decision of this court in In re Field'sEstate, 33 Wn. 63, 73 P. 768, in which this court approved the principles announced by other courts such as Blanding v.Sargent, 33 N.H. 239, to the effect that if the contract by its terms, or by reasonable construction, can be fully performed within a year, although it can be done only by the occurrence of some contingency by no means likely to happen, such as the death of some person referred to in the contract, the statute has no application and no writing is necessary.

And as in the Field case, supra, it seems to me that estoppel applies to appellants in this case. They permitted the stipulated installments to be applied upon the purchase price of the stock monthly until the total purchase price was paid, then, relying upon the statutes of frauds, repudiated the contract.

In my opinion, the respondent was and is entitled to recover, and the judgment of the trial court is right and should be affirmed.

PARKER, J., concurs with HOLCOMB, J.

ON REHEARING. [En Banc. November 16, 1925.] Upon a rehearing En banc, a majority of the court adhere to the opinion heretofore filed herein. The judgment is reversed with directions to dismiss the action.