Standing v. Morosco

JAMES, J.

The demurrer of defendant on general and special grounds was sustained to the third amended complaint of the plaintiff and leave to further amend was denied. Judgment of dismissal followed, from which plaintiff appeale'd.

The cause of action attempted to be alleged was one for damages sustained by the plaintiff through the refusal of the defendant to use and pay for the services of the plaintiff after having employed him as an actor to appear in plays produced by the defendant in his theater at Los Angeles. Plaintiff alleged that the engagement was for a period of one year. It is respondent’s contention that the complaint in its allegations showed a case falling within the statute of frauds, and that plaintiff could not recover because the term of employment was not fixed in any writing. An agreement which is not to be performed within one year from the making thereof, in order to be valid, must be expressed in writing. (Civ. Code, sec. 1624, subd. 1.) In order to avoid the effect of the statute, it is appellant’s position that there was such part performance of the contract shown as to raise an estoppel against respondent, preventing him from questioning the validity of the contract or its enforceability. The rule referred to is an equitable one which holds it to be a fraud under some circumstances to permit a party to make the defense that a contract is void or unenforceable because not in writing.

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Every person is advised of the plain requirement of the statute, and the mere omission to insist that a writing be made, or reliance only upon the unfulfilled promise

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of the other to put the agreement in writing, is not sufficient to protect the party insisting upon the fulfillment of the alleged contractual obligation. He must be misled by the other to his prejudice; not only must sufficient facts appear to show a representation (by words or conduct) on the part of the defendant that he did not intend to resort to a plea of the statute, but the other party must have so altered his position as that he would be made to suffer loss or unconscionable injury. If no such injury or loss is shown, the reason for the rule of estoppel fails and the excepted case is not established. (See Browne on Statute of Frauds, 5th ed., sec. 457;