Pitcher v. Wilson, 5 Mo. 46

ToMPEtNs, Judge, delivered the opinion of the court. Lewis Wilson brought an action of assumpsit against Thomas Pitcher, in the circuit court. Plea, non-assump-sit, and issue joined; verdict for the plaintiffj and judgment accordingly. To reverse the judgment of the circuit court this appeal is prosecuted. The evidence saved in the bill of exceptions shows that some years since, the plaintiff agreed to serve the defendant five years, in consideration of certain things to be done by the defendant for the plaintiff. The plaintiff proved that he had served the defendant the time agreed on.

The defendant moved the court to instruct the jury that there was no legal evidence before them. The defendant relies on the statute of frauds; by the first

section of which, it is provided that no action shall be brought upon any agreement that is not to be performed within one year from the making thereof, unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person, by him thereto lawfully authorized. The case of Blanton v. Knox, decided by this court, see 3d vol. Mo.

Decisions, was not like .¿his; there Blanton, hired the negro to Knox for a year, and it was the opinion of the court that Blanton could recover, he having performed his part of the contract by delivering the negro into the possession of Knox, and it being the part of Knox to see that the negro performed his duty. In the present case it is a free person who contracts to form services' for the term of five years, and before the expiration of that time he cannot claim his pay.

The evidence was admissible under the general issue — see Chitty’s Pleadings, vol. 1, 474; where it is said it may either be pleaded or given in evidence that the contract was against the statute of frauds. The instructions •prayed for ought to have been given, and the judgment of the circuit court, for refusing to give such-instructions, ought, in my opinion, to be reversed; and the other two Judges concurring in this opinion, it is reversed and the cause remanded.