Appeal from Circuit Court, Multnomah County. William M. Dale, Jr., Judge.
Graham Walker, Portland, argued the cause for appellant. With him on the briefs was Robert L. Olson, Portland.
Ridgway K. Foley, Jr., Portland, argued the cause for respondent. With him on the brief were Souther, Spaulding, Kinsey, Williamson & Schwabe and Robert G. Simpson, Portland.
Denecke, Justice. O'Connell, Chief Justice, and Holman and Howell, Justices. McAllister, Justice, dissenting. Bryson, Justice, joins in this dissent.
The plaintiff filed a complaint alleging that the defendant hospital had agreed orally to hire him as
an engineer at the rate of $10,200 per year for not less than 15 years. He further alleged that defendant discharged him after five years to his monetary damage. Defendant filed a demurrer which was sustained and plaintiff appeals.
The ground of defendant's demurrer was that the complaint failed to state a cause of action. Defendant contends that the oral contract cannot be enforced because any evidence of the oral agreement would be excluded by the parol evidence rule. ORS 41.740. The complaint alleged that certain terms of the employment contract were memorialized in a collective bargaining agreement, but other terms were orally agreed upon between the parties to this proceeding. This is an allegation of an unintegrated agreement; therefore, the parol evidence rule does not apply.
The principal ground of the demurrer was that the alleged oral agreement was not to be performed within a year and, therefore, came within the purview of the statute of frauds and is void.
"In the following cases the agreement is void unless it, or some note or memorandum thereof, expressing the consideration, is in writing and subscribed by the party to be charged, or by his lawfully authorized agent; evidence, therefore, of the agreement shall not be received other than the writing, or secondary evidence of its contents in the cases prescribed by law:
"(1) An agreement that by its terms is not to be performed within a year from the making."
The defendant contends that the statute must be applied literally. It points out that we have previously
stated: "This court has held that this section of the code means exactly what it says." Webster v. Harris, 189 Or 671, 678, 222 P2d 644 (1950).
Despite this statement, neither this court nor others, English or American, have applied the statute of frauds in a literal manner. Professor Corbin observed: "Like the United States Constitution, the statute of frauds is the product not only of those who drafted and enacted it, but also of those ...