
    No. 691
    BALLARD SALES CO. v. STONE
    Ohio Appeals, 4th Dist., Montgomery County
    No. 599.
    Decided Sept. 19, 1924
    725. LIMITATION OF ACTIONS — Under verbal contract not to be performed within a year party entitled to recover for services actually rendered separately from claim for unexecuted part.
    Attorneys — James & Coolidge, for Ballard Sales Co.; Kusworm & Shaman, for Stone; all of Dayton.
   ALLREAD, J.

Epitomized Opinion

Published Only in Ohio Law Abstract

This was an action for salary and commissions. Stone entered into a contract with' the Ballard Sales Co., which provided that he was to receive a salary of $6,000 per year payable $250 semi-monthly. Of the two semimonthly payments, $200 was to be chargeable against a sales commission of one per cent upon sales of automobiles, settlement to be made at the end of the year. Stone claimed that $500 per month was paid for six months, at which time he was discharged and that after discharge he reported for several days for service and was finally ordered away. He claimed that there was due and owing him the sum of $793.57, together with damages to the extent of $3,000.

The defendant claimed that plaintiff was to receive $500 per month as long as his services were satisfactory. The jury returned a verdict for $1800. Upon a motion for a new trial the court held that Stone could only recover from December 1, 1921, to June 6, 1922, for the reason that the contract came within the statute of frauds and being for a longer period than one year the unperformed portion of the contract was void. The Sales Co. prosecuted error, claiming that the contract was void as an entirety. In affirming the judgment of the Common Pleas, the Court of Appeals held:

1. Although an action cannot be maintained upon a verbal contract, not to be performed within one year, yet a party can recover for services actually rendered separately from the claim for the unexecuted part of the contract.  