Foster, Respondent, vs. McO'Blenis & Matthews, Appellants, 18 Mo. 88

Soott, Judge, delivered the opinion of the court. 1. The first question we will consider in this cause is, whether the contract stated in the petition is within the statute of frauds and perjuries, as it is not to be performed within a year, but may have an indefinite extension as to the period within which it may be completed. Whatever might be our opinion in relation to this question, if it were now for the first time to be determined, we do not deem ourselves warranted in departing from a course of decisions, wbicb seems to have been uniform in interpreting this clause of the statute.

The construction was early made, and has been steadily adhered to, that the clause under consideration only applies to contracts in which, by the express appointment or understanding of the parties, the thing is not to be performed within a year ; but as to those contracts which may, by possibility, he performed within a year, they are beyond the control of the statute. O’Blenis & Matthews might have died within a year from the period of making the contract, and as it would then have been fully performed, it is not therefore within the statute.

The point involved in the present controversy was determined in the case of Lyon v. King, 11 Metcalf, 411, where it was held, that an oral agreement, not thereafter to engage in the staging or livery business, is not within the statute of frauds, which prohibits the bringing an action on any oral agreement, that is not to be performed within one year from the making thereof. Peters v. Westborough, 19 Pick. A promise to pay the plaintiff so much money, “ on the day of his marriage,” or, on the arrival of a ship,” or, “ to leave money by a will,” need not be in writing. Peter v. Crompton, Skin. Fenton v.

Emblers, 3 Bur. 1 Salk. 180. 2. It is next insisted, that the verdict should be set aside and a new trial granted, because the court permitted a deposition to be sent to the jury which had been read during the trial, parts of which had been ruled out. The deposition sent to the jury was accompanied by an instruction from the court, that the part marked “ ruled out,” is no evidence for any purpose whatever in this cause. No exception was taken to this action of the court, nor does it appear what was the character of the part of the deposition ruled out.

Hence we cannot see that it influenced the jury in finding their verdict. It is true, the court had once refused to let it be read, but we are not to presume that the jury violated the direction of the court, without any proof on the subject, and considered that which was expressly excluded from them. Courts cannot be too vigilant in guarding all avenues to improper interference with jurors during their deliberations. Had the act complained of been done by either of the parties, the verdict would have been set aside, without any inquiry as to the nature of the evidence.

The proper practice is, if, after a jury has retired, they wish any of the evidence explained or repeated, they should return into court, and the explanation or repetition should take place in the presence of the parties or their counsel. As the matter complained of was the act of the court, who stands indifferent between the parties, and as it does not appear that the evidence was of a character to abuse the minds of the jury, even had they read it, which we are not to presume, we do not consider ourselves warranted in granting a new trial for this cause. 3.

We see no error in the refusal of the instructions asked by the defendants, if, indeed, they were refused, which does not appear upon the record. The defendants certainly could not evade their contract with the plaintiff by associating themselves with others and running an omnibus line under the name of a new firm. 4. Nor would the fact, that the plaintiff did not furnish as many carriages on the route as the public convenience required, authorize the interference of the defendants by supplying the deficiency.

The omission to furnish as many omnibusses as the public required, was a circumstance to be weighed by the jury in determining the damages for a breach of the contract, but would be no justification to the defendants for running a line of stages in violation of their agreement. The defendants were under no obligation to furnish carriages for the public, in the event of their not being supplied by the plaintiff, so as to warrant a violation of their contract. An occasional running of omnibusses on the line was as much a violation of the contract as though it had been done without intermission.

The difference only affects the damages. The instruction to the effect, that if the plaintiff had violated his undertaking with the defendants, which was part of the consideration of the defendants’ contract, be could not recover, tbougb not given at the defendants’ instance, as he alleges, yet, was given by the court. The defendants had the advantage of it, though it may be doubted whether it should have been given at all. We have said this much in relation to the law of those instructions on the record which seem most opposed to the views of the defendants.

It does not appear which of the instructions were given or refused for the respective parties, or which were excepted to ; and it would be a useless task to prosecute this investigation farther, as from the confusion in the record, in relation to the instructions, it would be impossible to come to a result that would warrant a reversal, of -the judgment, should any error appear, which we have not been enabled to discover. The other judges concurring, the judgment is affirmed.