Biggs & Co. v. Lokey

62 S.W.2d 665, 1933 Tex. App. LEXIS 1036

• Court: Court of Appeals of Texas
• Decided: May 27, 1933
• Docket: No. 12843
• Status: Published

Opinions

LATTIMORE, Justice.

Prior to November, 1929, the business now owned by appellant was owned by Lokey Cotton Machine Company, by whom appel-lee was employed on a per hour basis, and of which company appellee was secretary. That company sold in November to Biggs & Kuehn,. who took title in contemplation of the transfer of the same to appellant corporation as was accomplished in January, 1939.

Hughes, superintendent for that former • Lokey Company, continued as such with the appellant, and appellee contends that in November, 1929, Hughes hired him for two years at 75 cents per hour. That issue was sharply disputed. Lokey worked through 1930 and' to May, 1931, when ■ by mutual agreement “that all the boys have some work” he was put on part time, three or four days per week until September, 1931, when he was laid off. He made no complaint until about December 25, 1931.

The jury found that the year employment on November 30, 1929, at 75 cents per hour was made by Hughes, and further the following : “Do you find from the evidence that during the months of January, February, March and April, 1931, the plaintiff Lokey and Manager Hughes continued the relation of employer and employee with the mutual understanding that such employment of the plaintiff was to continue until January 15, 1932? Answer: Yes.” On this and other findings as to amounts the court rendered judgment for plaintiff.

The entire contract of hiring was oral. Article 3995, Rev. Statutes, forbids an action upon any agreement in writing which is not to be performed Within one year from the making thereof. It seems to be appellee’s theory that the issue above quoted relieves the contract from that statute. A careful examination of the statement of facts shows that there is no testimony that the matter of a contract for any specified length of time other than per hour was discussed by appel-lee with any one representing appellant other than at the inception claimed to have been in November, 1929.

Appellee went to work each day in the first four months of 1931 as he had in 1930 and just as he had in 1929 and 1928, when he worked for Lokey and claimed no such contract. Hughes saw him go to work each day, but no where or time in 1931 or near thereto, or any other time after November, 1929, did Lokey intimate to Hughes, or Hughes to Lokey, that the latter was doing same in the belief he had a contract for the entire year. A contract may be made by conduct, but that conduct must be such as that looking at such conduct a reasonable person would recognize that same pointed , only to the contract. As same relates to the statute of frauds, this principle is clearly stated in Clegg v. Brannan, 111 Tex. 367, 234 S. W. 1076, 1078: “Acts of performance must be sufficient to identify the contract in themselves, and with no other view than to fulfill the particular contract.”

If the acts of appellee in working each day in January, February, March, and April, 1931, identified a contract for tlie entire year of 1931, then every other employee of appellant during that time could claim a year’s contract. See Anderson v. Paschall, 60 S.W. (2d) 1087, by this court; Lechenger v. Merchants’ Nat. Bank (Tex. Civ. App.) 96 S. W. 638. “But an act which, though in truth done in pursuance of a contract, admits of explanation without supposing a contract, is not, in general, admitted to constitute an act * ⅜ * taking the case out of the statute.” 60 S.W. (2d) 1087, 1088.

This court does not make statutes, and neither can it destroy them if lawfully enacted.

The appellee was paid in full for the time he worked. He must pitch his case wholly on his contract to employ. He has not in reliance on the oral contract done one particle of work for which he has not been fully paid on terms he agreed to. Thus he' has not been defrauded even under the liberal rules of the Matthewson Case (Tex. Com. App.) 41 S.W.(2d) 204.

The judgment of the trial court is reversed and .here rendered.