The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919. Page: 69
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STANDARD BITULITHIC CO. V. CURRAN 69
2. FRAUDS. STATUTE OF 0:51-AGREEMENTS NOT TO BE PERFORMED WITHIN
ONE YEAR-OPTION TO TERMINATE WITHIN YEAB.
A parol contract, which by its terms may be terminated at the end of
six months at the option of either party, is not within the statute of
frauds of New York, as one that "by its terms is not to be performed
within one year."
3. COURTS 4=366(I)-FEDEEAL COURTS-FOLLOWING STATE DECISIONS.
A federal court in an action at law will follow a decision of the highest
court of the state, construing its statute of frauds.
Hough, Circuit Judge, dissenting.
In Error to the District Court of the United States for the Southern
District of New York.
Action by Joseph Curran against the Standard Bitulithic Company.
Judgment for plaintiff, and defendant brings error. Affirmed.
This cause comes here on writ of error to the District Court for the Southern
District of New York. The defendant in error, plaintiff below, and hereinafter
called plaintiff, is a citizen of the United States and a resident of the borough
of Richmond, city and state of New York. The plaintiff in error, defendant
below, and hereinafter called defendant, is a corporation organized and exist-
ing under the laws of the state of West Virginia. The action is in contract, and
the complaint alleges three separate causes of action.
The first cause of action sets forth the employment of the plaintiff by the
defendant on September 2, 1910, as agent or promoter, to secure for defendant
the selection and adoption of bitulithic and Warrenite pavements, with the
right and privilege of making bids and executing contracts for the laying of
such pavements in certain communities in the states of New York and New
Jersey, for the agreed price of $1,800 per annum as salary, and in addition
thereto the further sum of 3 cents per square yard for each square yard of the
aforesaid pavements laid in said communities; that such employment provided
for a temporary or probationary period of six months, and if, at the end of that
period, the services were satisfactory, such employment was to continue for
the further period of about nine years; that, pursuant to said agreement,
plaintiff performed work, labor, and services, under the direction of the de-
fendant, for said period of six months, which were announced by said defend-
ant to be satisfactory and acceptable; that thereafter plaintiff continued in
said employment, pursuant to and under the terms thereof, and that between
the said 2d day of September, 1910, and the 1st day of August, 1912, he se-
cured for the defendant certain specified contracts for the laying of its pave-
ment in certain municipalities in the states of New York and New Jersey, to
the amount of 141,700 square yards, that plaintiff performed all of the condi-
tions of said contract upon his part to be performed, until prevented by de-
fendant on or about August 1, 1912; that the defendant, in violation of its
agreement, neglected and refused to pay plaintiff for the pavements laid by de-
fendant to the extent of 94,500 square yards, under bids and contracts se-
cured for it by the plaintiff, and for which defendant was to pay the plaintiff
the sum of 3 cents per square yard as a commission, amounting in the aggre-
gate to the sum of $2.835, althoueh plaintiff duly demanded payment.
The second cause of action set forth in the bill of complaint is substantially
the same as that set forth in the first, but is alleged in a different form, and
as for work, labor, and services, without any reference to the agreement set
forth in the prior cause of action.
The third cause of action, after setting forth the making of the agreement
alleged in the first cause of action, and the due performance of all of its terms
and conditions upon the part of tle plaintiff, and his readiness and willingness
to continue to perform the same, alleges its repudiation and termination by the
defendant, to the plaintiff's damage in the sum of $150,000. And judgment is
asked against defendant in the sum of $152,835.
The first two causes of action are in effect the same, but put in different
form. The first and second causes of action relate to what the plaintiff earn-
4:For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests A Indexes
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The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919., legislative document, 1919; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38827/m1/83/: accessed August 21, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.