Dykema v. Story & Clark Piano Co.

Michigan Supreme Court

Dykema v. Story & Clark Piano Co.

190 N.W. 638, 220 Mich. 600, 27 A.L.R. 660, 1922 Mich. LEXIS 948

CourtMichigan Supreme Court

DecidedDecember 5, 1922

DocketDocket No. 44

StatusPublished

Cited by5 cases

This text of 190 N.W. 638 (Dykema v. Story & Clark Piano Co.) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dykema v. Story & Clark Piano Co., 190 N.W. 638, 220 Mich. 600, 27 A.L.R. 660, 1922 Mich. LEXIS 948 (Mich. 1922).

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Opinions

Fellows, C. J.

It must be conceded that the precise question here involved has not been decided by this court. It must be conceded that the authorities both in this country and in England are in conflict. It must be conceded that we have no statute similar to the Alabama and the New York statutes to which attention is called in my Brother Wiest’s opinion. But I think it must also be conceded that our bench law has pretty thoroughly settled the question of computation of time. Illustrative of our cases will be found Jocque v. McRae, 142 Mich. 370, cited by my [601]*601Brother. In Prokop v. Bedford Waist & Dress Co., 173 N. Y. Supp. 792, in a very able opinion the authorities both in this country and in England are fully reviewed. I content myself with citing that case without here taking up all the cases. I think, however, two of the cases relied upon by my Brother to support his conclusion should be considered. In Chase v. Hinkley, 126 Wis. 75 (105 N. W. 230, 2 L. R. A. [N. S.] 738, 5 Ann: Cas. 328, 110 Am. St. Rep. 896), the proof left the date of the agreement in doubt but the court found that it was made on October 29, 1903, work to begin November 1st. The case before Lord Ellenborough in Bracegirdle v. Heald, 1 Barn. & Ald. 722, was an agreement made May 27th to enter defendant’s service as groom and gardener on June 30th following for a term of service of 12 months. Both cases were clearly within the statute- of frauds and the language of the opinions must be considered as applicable to the facts before the court. By the terms of the agreement before us plaintiff could have commenced performance of his contract October 22, 1920; had he done so he would have completed it October 21, 1921. This would have been within a year from the day it was entered into (October 21, 1920). The law does not take account of fractions of a day. I think the agreement was not within the statute of frauds and that the judgment should be affirmed.

McDonald, Clark, Sharpe, and Steere, JJ., concurred with Fellows, C. J.

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Fellows, C. J.

It must be conceded that the precise question here involved has not been decided by this court. It must be conceded that the authorities both in this country and in England are in conflict. It must be conceded that we have no statute similar to the Alabama and the New York statutes to which attention is called in my Brother Wiest’s opinion. But I think it must also be conceded that our bench law has pretty thoroughly settled the question of computation of time. Illustrative of our cases will be found Jocque v. McRae, 142 Mich. 370, cited by my [601]*601Brother. In Prokop v. Bedford Waist & Dress Co., 173 N. Y. Supp. 792, in a very able opinion the authorities both in this country and in England are fully reviewed. I content myself with citing that case without here taking up all the cases. I think, however, two of the cases relied upon by my Brother to support his conclusion should be considered. In Chase v. Hinkley, 126 Wis. 75 (105 N. W. 230, 2 L. R. A. [N. S.] 738, 5 Ann: Cas. 328, 110 Am. St. Rep. 896), the proof left the date of the agreement in doubt but the court found that it was made on October 29, 1903, work to begin November 1st. The case before Lord Ellenborough in Bracegirdle v. Heald, 1 Barn. & Ald. 722, was an agreement made May 27th to enter defendant’s service as groom and gardener on June 30th following for a term of service of 12 months. Both cases were clearly within the statute- of frauds and the language of the opinions must be considered as applicable to the facts before the court. By the terms of the agreement before us plaintiff could have commenced performance of his contract October 22, 1920; had he done so he would have completed it October 21, 1921. This would have been within a year from the day it was entered into (October 21, 1920). The law does not take account of fractions of a day. I think the agreement was not within the statute of frauds and that the judgment should be affirmed.

McDonald, Clark, Sharpe, and Steere, JJ., concurred with Fellows, C. J.

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Bluebook (online)

190 N.W. 638, 220 Mich. 600, 27 A.L.R. 660, 1922 Mich. LEXIS 948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dykema-v-story-clark-piano-co-mich-1922.

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