McIntosh v. Murphy

*38 DISSENTING OPINION OF

ABE, J.,

WITH WHOM KOBAYASHI, J., JOINS.

Tbe majority of tbe court bas affirmed the judgment of the trial court; however, I respectfully dissent.

I.

Whether alleged contract of employment came within the Statute of Frauds:

As acknowledged by this court, the trial judge erred when as a matter of law he ruled that the alleged employment contract did not come within the Statute of Frauds; however, I cannot agree that this error was. not prejudicial as this court, intimates.

On this issue, the date that the alleged contract was entered into was all important and the date of acceptance of an offer by the plaintiff was a question of fact for the jury to decide. In other words, it. was for the. jury to determine, when. the. alleged one-year employment contract was entered into and if the jury had found that the plaintiff had accepted the offer 1 more than one day. before plaintiff was to report, to work, the. contract would have come within the Statute of Frauds. and would have been unenforceable. Sinclair v. Sullivan Chevrolet Co., 31 Ill. 2d 507 , 202 N.E.2d 516 (1964); Chase v. Hinkley, 126 Wis. 75 , 105 N.W. 230 (1905).

II.

This court holds that though the alleged one-year employment contract came within the Statute.of Frauds, nevertheless the judgment, of the trial court is affirmed “on the ground that the plaintiff’s reliance was such that injustice could .only be avoided by. enforcement of the contract.”

I believe this court is begging the issue by its holding because to reach that conclusion, this court is ruling that *39 the defendant agreed to hire the plaintiff under a one-year employment contract. The defendant has denied that the plaintiff was hired for a period of one year and has introduced into evidence testimony of . witnesses that all hiring by the defendant in the past has been on a trial basis. The defendant also testified that he had hired the plaintiff on a trial basis.

Here on one hand the plaintiff claimed that he had a one-year employment contract; on the other hand, the defendant claimed that the plaintiff had not been hired for one year but on a trial basis for so long as his services were satisfactory. I believe the Statute of Frauds was enacted to avoid the consequences this court is forcing upon the defendant. In my opinion, the legislature enacted the Statute of Frauds to negate claims such as has been made by the plaintiff in this case. But this court holds that because the plaintiff in reliance of the one-year employment contract (alleged to have been entered into by the. plaintiff, but denied by . the defendant) has changed his position, “injustice could only be avoided by enforcement of the contract.” Where is the sense of justice?

Now assuming that the defendant had agreed, to hire the plaintiff under a one-year employment contract and the contract came within the Statute of Frauds, I cannot agree,, as intimated by this court, that we should circumvent the Statute of Frauds by the exercise of the equity powers of courts. As to statutory law, the sole function of the judiciary is to interpret the statute and the judiciary should not usurp legislative power and enter into the legislative field. A. C. Chock, Ltd. v. Kaneshiro, 51 Haw. 87, 93 , 451 P.2d 809 (1969); Miller v. Miller, 41 Ohio Op. 233 , 83 N.E.2d 254 (Ct. C.P. 1948). Thus, if the Statute of Frauds is too harsh as intimated by this court, and it brings about undue hardship, it is for the legislature to amend or repeal the statute and not for this court to legislate.

Plaintiff testified that he accepted the offer in California over the telephone.