Schettino, Lloyd and Woods. The opinion of the court was delivered by Schettino, J.s.c.
Defendants appeal from a judgment entered upon a jury's verdict. Plaintiff is the assignee of Nelson Tyrrel and his wife, Mary Elizabeth Tyrrel. The recovery was for damages for breach of an agreement whereby defendants contracted to employ both Mr. and Mrs. Tyrrel.
The damages recovered were not for services rendered but rather for the agreed compensation for the unperformed portion of the contract period, less earnings obtained by Mr. and Mrs. Tyrrel from employment elsewhere after the claimed breach.
Defendants challenge the inclusion of a " per diem " allowance, which the Tyrrels testified was to be paid by defendants in addition to the compensation which was designated as such, and also contend that the amount of the verdict cannot be reconciled with the proof. Neither of these contentions is impressive in the light of the testimony, but we need not discuss them since the defendants' position that plaintiff's claim for relief is barred by the statute of frauds, is, in our view, dispositive of the case.
The Tyrrels testified that on June 2, 1951, an oral agreement was made whereby they were to be employed by defendants
for a period of one year beginning at a later date upon their departure for Casablanca. Tyrrel was also to perform, and did perform, services for defendants in the United States prior to the contemplated move abroad. Mrs. Tyrrel's services were to be performed solely in Casablanca. She at no time performed any work for defendants. The breach charged was that defendants refused to give the agreed employment to Mrs. Tyrrel, by reason of which Tyrrel declined to continue, claiming as stated above that the agreement was to employ both and that the joint employment was an essential feature of the agreement. The defendants' version of the facts is sharply different, but the jury could have found the facts to be as we have stated them and for the purposes of this appeal those facts must be accepted. R.S. 25:1-5 provides that:
"No action shall be brought upon any of the following agreements or promises, unless the agreement or promise, upon which such action shall be brought or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person thereunto by him lawfully authorized:
e. An agreement that is not to be performed within one year from the making thereof."
An agreement of employment for a period of one year commencing after the date of the making of the contract is within the statute. LaBett v. Heyman Bros., Inc. , 13 N.J. Misc. 832 (Sup. Ct. 1935), affirmed on opinion below, 117 N.J.L. 115 (E. & A. 1936); Dolan v. Miller , 13 N.J. Misc. 543, 179 A. 619 (Sup. Ct. 1935); McElroy v. Ludlum , 32 N.J. Eq. 828 (E. & A. 1880).
Plaintiff does not quarrel with this rule, but claims that the contract here proved falls beyond it because the Tyrrels, according to their testimony, had an agreed right to terminate the employment at any time within the year and hence, plaintiff argues, the contract could have been performed within a year. Defendants make a two-fold answer to this position. They contend, first, that the testimony of the
Tyrrels revealed, not a right to terminate, but an agreed immunity from liability if they should breach the contract, and, second, that an option to terminate does not legally suffice to deny the bar of the statute. The trial court took the view that the jury could find from Tyrrels' testimony that they had the claimed right to terminate, and we agree that this is so. With respect to the second facet of defendants' position, the trial court accepted plaintiff's version of the law and accordingly submitted to the jury the factual issue as to the existence of the right to terminate. The trial court further charged that part performance of the contract would remove it from the statute. Accordingly, the ...