
    Norman W. Pemberton, Plaintiff-Respondent, v. Ladue Realty and Construction Company, a Corporation, Defendant, Jamerson C. McCormack, Defendant-Appellant,
    No. 42551
    244 S. W. (2d) 62.
    Division Two,
    November 12, 1951.
    Rehearing Denied, December 10, 1951.
    
      Don O. Russell and Tyree G. Derrick for defendant-appellant; Karl E. Holderle, Jr., of counsel.
    
      Herbert W. Ziercher and Wm. J. Becker for plaintiff-respondent.
   WESTHUES, C.

Plaintiff Pemberton obtained a verdict of $15,000 against McCormack for an alleged breach of a partnership contract. From the judgment McCormack appealed.

The Ladue Realty and Construction Company was also made a defendant. A jury returned a verdict in favor of this company. Plaintiff gave notice of an appeal but filed no brief in this court as an appellant and we treat the appeal as having been abandoned. Plaintiff filed a brief as respondent taking issue with appellant McCormack on his appeal.

This is the third appeal of this case. The first trial resulted in a verdict for plaintiff. On appeal the St. Louis Court of Appeals held the verdict could not be upheld because it was based on quantum meruit; that plaintiff’s evidence tended to prove an express oral contract. The judgment was reversed. See Pemberton v. Ladue Realty and Construction Company, 237 Mo. App. 971, 180 S. W. (2d) 766. The court of appeals (180 S. W. (2d) 1. c. 771 (4-7)) said: "If plaintiff’s evidence is true, then for this wrongful act plaintiff has a cause of action at law for breach of contract, or he might sue in equity for formal dissolution and accounting.” Plaintiff then sought to proceed on the theory that the contract had been breached and asked damages therefor. The trial court dismissed the case on defendants’ plea of res judicata. This court reversed that judgment holding the trial court had erred in sustaining the plea of res judicata. See Pemberton v. Ladue Realty and Construction Company, 359 Mo. 907, 224 S. W. (2d) 383.

The case was then tried before a jury resulting in verdict as above-indicated. The facts of the case were fully stated in the opinion by the court of appeals. A brief statement will be sufficient for disposition of the case on this appeal. Plaintiff was engaged in the real estate business as a broker or real estate agent. The defendant was a chemical and structural engineer. The parties had known each other many years having attended Washington University at the same time. In tide spring of 1938, plaintiff had for sale as agent a 25-acre tract of land in Ladue, St. Louis County, Missouri. He approached the defendant and proposed to him that the property be purchased and divided into lots and offered for sale. Plaintiff stated that McCormack became interested and it was agreed that McCormack would furnish the money and plaintiff would do the work of supervising the subdivision and the sale of the lots. Plaintiff stated it was agreed that the profits were to be divided.

The property was purchased at a price of $40,000 and the title was taken in the name of Ladue Realty and Construction Company; the stock in this corporation was issued to McCormack and the members of his family. McCormack, being an engineer, did much of the work of surveying the land and supervising the construction wox’k, such as gradixig axid bxxildixxg roads. Plaixxtiff placed sigxxs oxi the property and otherwise advertised ^ the lots for sale. The subdivision was named “Ladxxe Wood.” It was conceded that plaixxtiff spexxt most of his time on this project from the summer of 1938 to August 7, 1940, whexx he was notified by the Ladue Realty axxd Constructioxx Compaxxy to remove all of his sigxxs from the prexxxises axxd that his authority to sell the lots ixx Ladue Wood was termiixated. Plaintiff then sued the defexxdants with the results as above-indicated.

The defexxdaxxt McCormack testified that he axxd plaixxtiff xxever came to axxy defixxite agreement; that at various times he ixxsisted on havixxg a contract in writing; that he ixxfornxed plaixxtiff that until such time as they would have axx agreement ixx writing, plaixxtiff would sell lots oxx a coxxxxnissioxx basis. Plaixxtiff testified that his coxxtract with McCormack was entirely oral axxd that an agreement was reached as to a plaxx axxd method of pronxotixxg the improvement of the subdivision aixd sale of the lots; that the program would extexxd over a five-year period.

, It is evident that the alleged coxxtract was xxot to be performed withixx one year from the making thereof. The' defendant McCormack ixx his answer relied for a defexxse upon the Statute óf Frauds, Section 3354, R. S. 1939, Mo. R. S. A., xxow Sectioxx 432.010, Mo. R. S. 1949. The sectioxx reads ixx part as follows: “x\To actioxx shall be brought * # * upon any agreemexxt that is not to be performed within one year from the making thereof, unless the agreemexxt upon which the actioxx shall be brought, or some memorandum or note thereof, shall be in writixxg axxd signed by the party to be charged therewith, or some other person by him thereto lawfully authoxuzed, * *

Plaixxtiff ixx his brief says: “Part performaxxce of a verbal coxxtract takes it out -from xxxxder the baxx of the Statute of Frauds. Scheerer v. Schurer (Scheerer), 287 Mo. 92, 229 S. W. 192; Cong. B’nai Abraham v. Arky, 20 S. W. (2) 899, 323 Mo. 776; Lambert v. Ry. (St Louis & G. Ry. Co.), 111 S. W. 550, 212 Mo. 692; Cullegde (Gulledge) v. Davis, 264 S. W. 441.”

In the case of Gulledge v. Davis, a tenant in the fall of 1922 verbally rexxted a farm for the year 1923. In axx actioxx for unlawful detainer, this court held the coxxtract had been ratified by the purchaser from the landlord oxx January 2, 1923, axxd therefore the statute of frauds would xxot apply. The other three cases cited were equitable actioxxs to exxforce sales of real estate wherein the coxirt held that part performaxxce of the contract rendered the statute of frauds inapplicable.

The case xxow before us is an actioxx at law to recover daxxxages for breach of an oral coxxtract which admittedly coxxld xxot be performed

within one year. Part performance in such a case does not take the contract out of the statute of frauds. In 49 Am. .Jur. 395, Sec. 35, the rule is fully stated as follows: “The fact that a contract is to be or may be partly performed within a year does not take it out of the operation of the statute. The term ‘performance’ means complete performance. Thus, Avhere the defendant agreed to perform certain acts during successive years, the fact that he performed the contract during some of the years does not take it out of the statute so as to render him liable ’for a breach of the contract on account of his refusal of further performance. It is also the general rule that the statute renders a contract not fully to be performed within a year, in so far as executory, unenforceable in toto, and does not permit it to be enforced against the defendant to the extent that its performance within a year is called for.” In 37 C. J. S. 773, Sec. 254, we note the following rule: “As a general rule, contracts not to be performed within one year are not taken out of the statute of frauds by part performance, except in certain cases in Avhich real estate is involved or in which specific performance would be decreed. However, such contracts may be taken out of the statute by complete performance by one party thereto, regardless of hoAV many years may have to elapse before the agreement is performed by the other party; but in the absence of controlling statute, nothing less than full performance by one party Avill suffice, * * The rule is supported by the following cases: Waller v. Tootle-Campbell Dry Goods, Mo. App., 59 S. W. (2d) 751, 1. c. 754 (7); Nally v. Reading, 107 Mo. 350, 17 S. W. 978. In the Waller case the court said, “Nor does a partial performance of a contract not to be performed within a year and therefore within the terms of the statute (section 2967) dispense Avith the necessity of proving the contract by a complete Avritten memorandum. Johnson v. Reading, 36 Mo. App. 306; Nally, Adm’r v. Reading, 107 Mo. 350, 17 S. W. 978; Diamon v. Wells, (Mo. App.) 226 S. W. 1016.” The rule has been applied to partnership agreements. Seeley v. Morris, 242 P. (Wash.) 359, 1. c. 361 (6); Lowman v. Sheets, 24 N. E. (Ind.) 351; Wahl v. Barnum, 22 N. E. (N. Y.) 280, Syl. 2. The court in the latter case said (22 N. E. 1.c. 282): “A contract forming a partnership to be continued beyond one year is Avithin the section of the statute of frauds AAdiich provides that every agreement Avhich, by its terms, is not to be performed in one year from the making thereof, is void unless it is in Avriting; and a partnership so formed is a partnership at will. Morris v. Peckham, 51 Conn. 128; Williams v. Jones, 5 Barn & C. 108; Jones v. McMichael, 12 Rich. Law, 176; Essex v. Essex, 20 Beav. 442; Burdon v. Barkus, 3 Giff. 412, affirmed, 4 De Gex. F. & J. 42, 47, 50; Reed, St. Frauds, Sec. 191.”

If the rule Avere as plaintiff contends, it Avould be necessary to interpret the statute to the effect that no action shall be brought upon any agreement the performance of which shall not be commenced within one year from the malting thereof. Taking plaintiff’s evidénce as true, the agreement between him and McCormack pertained to a single transaction, that is, the subdivision of the 25-acre tract for the purpose of selling the lots and dividing the profits. It was conceded that the contract could not be performed within one year, hence no action could be brought upon any such agreement unless the contract was in writing, signed by the party to be charged.

In view of what we have said', it is unnecessary to discuss the other points briefed.

The judgment is reversed.

Bohlmg and Barrett, CG., concur.

PER CURIAM:

The foregoing opinion by Westhues, C., is adopted as the opinion of the court.

All the judges concur.  