Supreme Court of South Dakota.LAMPERT LUMBER CO.v.PEXA.FN*FN*Rehearing denied October 19, 1921.
Aug. 15, 1921.Appeal from Circuit Court, Day County; Frank An-derson, Judge.Action by the Lampert Lumber Company againstThomas Pexa. From a judgment for plaintiff and anorder overruling defendant's motion for a new trial,defendant appeals. Reversed.West Headnotes
Frauds, Statute Of 185 139(1)
185Frauds, Statute Of 185IXOperation and Effect of Statute185k139Contracts Completely Performed
185k139(1)k. In General.Most Cited
CasesAfter full performance of a contract for services ex-tending over a period of more than a year, it is im-material that the contract was within the statute,and exclusion of oral evidence of it is error.
Trial 388 170
388Trial388VITaking Case or Question from Jury388VI(D)Direction of Verdict
388k167Nature and Grounds388k170k.Verdict f or Plaintiff.Most
Cited CasesIn suit to recover money retained by defendant, andwhich he claimed was due him as a commission onsales of lumber made by him as plaintiff's manager,defendant's evidence was that the commission wasto be on sales over a period of one year, beginningseven months from time of entering with contract.On motion this evidence was stricken out, as beingcontrary to the statute of frauds, and verdict direc-ted for plaintiff.
that the direction of verdictwas error, as plaintiff was required to prove hiscause of action under the pleadings.
Waddel & Dougherty, of Webster, for appel-lant.Lewis W. Bicknell, of Webster, for respondent.POLLEY, P. J.Defendant in this action was employed by plaintiff to act as manager of a lumber yard owned by it inthe city of Webster. The contract of employmentwas made in the month of May, 1918, and no partof it was reduced to writing. The employment wasto commence the 1st of July, 1918, and to continuethrough the remainder of that year and through1919. It is the contention of plaintiff that defendantwas to receive a salary of $125 per month, whichwas to be in full payment for his services for thefull term of his employment. Defendant admits thathis pay for the remainder of the year 1918 was to beonly $125 per month, but claims that the employ-ment was to continue to the 1st day of January,1920, and that the agreement was that for the year1919, he was to receive a salary of $125 per monthand in addition thereto a commission of 3 per cent.on all business in excess of $30,000 that was trans-acted at that yard during the year 1919. Defendanthad authority, while such employment continued, todraw checks against plaintiff's account at a localbank and pay certain bills and expenses, includinghis own salary. The business transacted at that yardduring the year 1919 greatly exceeded $30,000, anddefendant, claiming he was entitled, under theterms of his contract, to commissions amounting to$300, drew that amount of money in payment of such commissions. Plaintiff, claiming defendant184 N.W. 207 Page 144 S.D. 382, 184 N.W. 207
(Cite as: 44 S.D. 382, 184 N.W. 207)
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