Nesson v. Moes

LILLIE, J.

Plaintiff sought recovery of the balance assertedly due on an oral agreement to render personal services over a four-year period as an employee of, and in association with, the defendant in the practice of medicine. Both parties are medical doctors. The trial court found against the claim that the agreement was within the statute of frauds and unenforceable because by its terms it was impossible of performance within a year from the making thereof. (Civ. Code, § 1624, subd. 1; Code Civ. Proe., § 1973, subd. 1.) The sole point on this appeal is the validity of such claim.

The contract was entered into on March 1, 1955. By its terms (not disputed) plaintiff was employed by defendant for the balance of that year (1955) at a salary of $1,000 per month. For the two-year period commencing January 1, 1955, and ending December 31, 1957, plaintiff was guaranteed an

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annual salary of $12,000. In addition, defendant undertook to pay plaintiff for the years of 1956 and 1957 a sum equal to 40 per cent per year of the annual gross income of the medical practice carried on by the parties over and above the sum of $113,200; the defendant further obligated himself to pay all overhead and office expenses.

For plaintiff’s services during 1956 he was paid the sum of $15,300, while for the year 1957 he was paid the sum of $15,900. For 1956 and 1957, respectively, this represented $432.85 and $3,723.04 less than the terms of the contract called for. Judgment was rendered for $4,155.89, the total of the above sums.

, The trial court found (among other things) that plaintiff, in reliance upon the subject contract, became associated with the defendant in the practice of medicine for a period ending December 3, 1959, and that 11 nothing remained to be performed pursuant to the terms of the oral contract of March 1, 1955, with the exception of the computation of the moneys due to the Plaintiff by the Defendant for 40% of the gross annual income of the medical practice carried on by Plaintiff and Defendant for the years 1956 and 1957.” From this, the conclusion of law was drawn that ‘1 The oral contract of March 1,1955, constituted an executed oral agreement in that all that remained to be done was the computation of the moneys due and owing by Defendant to Plaintiff, pursuant to the oral contract of March 1, 1955; that as an executed oral agreement, the oral contract of March 1, 1955, was not required to be in writing within the meaning of § 1624, subd. 1 of the Civil Code, and § 1973, subd. 1 of the Code of Civil Procedure. . . .”