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Gano v. Jamail - 678 S.W.2d 152 (Tex. App. 1984)

Rule:

Tex. Bus. & Com. Code § 26.01, provides that all agreements not to be performed within one year of the date they are made, must be in writing and signed by the person to be charged. The application of the statute is complicated somewhat when the time of performance is not specifically set and the alleged agreement itself does not indicate that it cannot be performed within a year. In that event, the general rule is that such an oral agreement does not violate the Statute of Frauds. The rule is applied differently, however, when the agreement, either by its terms or by the nature of the required acts, cannot be completed within a year of its making. If the evidence conclusively proves that the contract cannot be performed within a year, the oral contract violates the Statute of Frauds as a matter of law, and is therefore unenforceable.

Facts:

Lawyer Gano filed an action to enforce an oral partnership agreement almost four years after he quit working with lawyer Jamail to recove his share of profits. The trial court granted summary judgment in favor of lawyer Jamail because the agreement was void pursuant to the statute of frauds. Lawyer Gano appealed.

Issue:

Is the oral agreement between the parties covered by the Statute of Frauds?

Answer:

Yes.

Conclusion:

The court affirmed, and held that the nature of the agreement and the personal injury practice of the firm were such that the contract could not have been performed in one year, so the statute of frauds applied. The court held that appellant's actions in accepting paychecks twice a month and an end of year distribution which was significantly less than one half of the firm's profits for over eight years and then waiting almost four years to file suit estopped him from alleging that a contract existed.

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