Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1899-12-02
Ogden Farming Case RemaNded
Back for New Trial.
CONTRACT WAS IN ISSUE.
snprcme.Cour Finds That Agreement
Between %. a. smyth and Joseph
Abba Was binding.

The Supreme court handed down an
opinion today in the case OF Joseph Alb
la, appellant, vs. d.. A. smyth, reyers-
ing the cause and temandlng che same
20 the Second district court with direc-
lions to grant a new TRIAL.
This was an action brought, by The
plaintiff Abba to secover from the de-
PENDANT smyth the sum Of Si263, for the
alleged breach OF @ certain contract
The parties reside in Ogden, and on
April 9Th, 1895, they entered into on
agreement whereby smyth agreed to
employ Abba on his farm and promised
GO pay him In one-haf Of the crops
raised, smyth 20 receive thirty-hye tons
OF hay and fifty bushels Of oats before
the division, the remainder 60 be equally
divided between the two. Smyth FUR
cher agreed, according 60 the terms OF
the contract, TO furnish all seed, farm
ing implements, horses and wagons
the board and lodging Of Abba, and 70
engage q man 20 help. also 90 furnish
~ater to mature the crops, the agree
ment 10 remain In force during the
farming seasons OF che years 1883, 1899
and 1900
Plaintiff alleged that he entered upon
che farm In April, 1898, and worked un-
I'll November q, following; that he per-
formed his part OF the contract. bat
that defendant failed 20 carry out his
part, repudiatej the agreement and
drove plaintiff OF the farm. threatening
him with violence II he remaf1ed,
In his answer Smyth admitted the
contract. but alleged that Abba neglect
ed his work and allowed the crops TO
be damaged. He set up oounter>
claim Of $500.
The case was tried before Judge Ro-
lapp and a jury, the latter, under per-
emptory instruction Of the court, re-
turning a verdict mo cause O action,
IN favor OF the defendant. From this
judgment Abba appealed,
II was contended by counsel for the
respondent Smyth that the contract
was void under the statute Of frauds.
The Supreme court holds that while
the contract was loosely drawn II was
reasonably certain as to all the neces-
sary requirements OF a memorandum
as required by the statute. Both
parties executed the writing which i'm
posed mutual obligations on each
II was also claimed by the respond
ent that the testimony tending TO show
a compliance with the contract ON the
part of the plaintiff, and breach
thereof on the part OF defendant was
inadmissible and was properly rejected
by the court. The Supreme court does
not concur in this view and holds that
proof showing that plaintiff complied
with hts part OF the contract and that
defendant failed In his was competent
testimony and should have gone to the
jury.
The court further finds that the an
swer Of defendant did not raise the
issue under the statute Of frauds and
that the plaintiff had no notice. Of this
part OF the defense until the trial had
began.
"By admitting the contract, alleging
its fulhllment by defendant and nom
fulfllment by the plaintiff. and claim
ing damages for such fulllllment,
the defendant" the court says. was
hardly In a position to insist upon the
statute as a bar TO the action, or 10
urge that the contract was unilatera
and binding upon the defendant only.
In effect, the answer admits the con-
tract, asserts its binding force upon
both patlres, claims under IL, relies
upon It's breach by plaintiff, as a
ground upon which TO recover dam
ages for its n-fulhllment, and yet
this court Is asked TO say that the
contract Is unilateral. lacks mutually
and was void under the statute Of
frauds. II is useless 10 assert that de-
PENDANT has not acted upon and treat
ed the contract as binding upon both
parties"
In rejecting the testimony tending 70
show plaintiffs compliance with the
contract and the breach Of defendant
the court holds that Judge ROlapr
erred.
Justice Miner wrote the opinion and
was concurred in by Chief Justice
Bartch, Justice Baskin concurred In
the result.