
    Julia M. Crane, Resp’t, v. Seneca D. Powell, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 6, 1892.)
    
    1. Statute of frauds—Pleading.
    The defense of the statute of frauds cannot be raised under a general denial, but must be pleaded to be available, unless the complaint itself shows that the contract sued upon is within the statute.
    2. Contract—Board—Damages for breach.
    "Where a boarder under contract to board for a certain time refuses to-remain, the boarding house keeper is not obliged to tender performance, but may recover the profits she would have made had he remained.
    3. Same.
    It is no defense to such action that the boarding house keeper thereafter surrendered possession of the premises, as this may justly be regarded as-an effort on her part to reduce the damages sustained, and as equivalent to letting them on his account at the price they cost her.
    Appeal from a judgment entered, upon the verdict of a'jury at a trial term of this court, and from an order denying a motion for a new trial.
    
      C. Godfrey Patterson, for app’lt; John W. Weed, for resp’t.
   Bookstaver, J.

This action was commenced by the plaintiff to recover damages for a breach of contract which she claimed to have made with the defendant to provide him furnished rooms, attendance and board for a period of one year from the 1st November, 1887. From the evidence it appears that this alleged contract was entered into towards the latter part of October of that year and a few days before the 1st November. It was not in writing. Although this fact did not appear in the complaint, and the validity of the contract was not averred in the answer, before the plaintiff had fully rested the defendant moved to-dismiss the complaint, and at the close of the case moved for a direction of a verdict on the ground that the contract testified to-by the plaintiff was invalid under the statute of frauds. These motions the court denied, as would appear from the case and especially from the charge, on the ground that the defendant had not pleaded the statute and could not avail himself of it under a general denial. For a long time it was thought that where the complaint alleged the existence of a contract without stating whether or not it was in writing, the statute of frauds could be taken advantage of under a general denial, for the reason that the allegations of the complaint implied of a legal contract and that the plaintiff -was bound to prove such a contract by proving the writing, or if it turned out to rest in paroi, .that then it could be attacked on the ground that it was obnoxious to the statute of frauds. Berrien v. Southack, 26 St. Rep., 982; Harris v. Knickerbacker, 5 Wend., 638; Gibbs v. Nash, 4 Barb., 451; Cary v. Western Union Tel. Co., 20 Abb. N. C., 333; 15 St. Rep., 204; Marston v. Swett, 66 N. Y., 206, and many others which might be cited. But we think the later decisions in the court of appeals have overruled this doctrine. In Porter v. Wormser, 94 N. Y., 450, it was said: “ The general rule is that the defense of the statute of frauds must be pleaded except where the complaint on its, face discloses a case within the statute.

“ It cannot be doubted that if the defendants had brought am action to recover a balance claimed to be due on the contract for the purchase of the bonds without disclosing whether the contract was oral or written, the plaintiff would have been bound to plead the statute to avail himself of its protection.” In Hamer v. Sidway, 124 N. Y., 548; 36 St. Rep., 888, an oral promise was made by the defendant’s testator to pay plaintiff $5,000 if he refrained from drinking, etc., for more than a year. ‘ In deciding that case Parker, J., said: “It will be observed that the agreement which we have been considering was within the condemnation of the-statute of frauds, because not to be performed within a year and not in writing. But this defense the promisor could waive, * * * were it otherwise the statute could not now be invoked in aid of the defendant. It does not appear on the face of the complaint that the agreement is one prohibited by the statute of frauds, and therefore such a defense could not be made available unless set up in the answer." In Wells v. Monihan, 129 N. Y., 161; 41 St. Rep., 409, it was sought to defeat the action on the ground that the paper upon which the action was brought was void by the statute of frauds in that by its terms it was for the debt, default or miscarriage of another, and no consideration was expressed in the instrument itself. But it was held that in so far as the defense rested: upon the statute of frauds it must fail for two reasons, the first of which was that no such defense had been pleaded, and that it was not raised by the averments of the complaint; and without one or the other of these conditions the defense, if it existed, could not be made available. The language of the decision is very broad and comprehensive, and we think conclusive upon this-question, and that the court properly refused to dismiss the complaint or direct a verdict in favor of the defendant on that ground.

The defendant also moved to dismiss the complaint before the plaintiff had fully rested, on the ground that it appeared that she-had surrendered possession of the premises in July and was not able to perform for the remainder of the term; and also on the ground that she had proved no damages. Neither of these grounds for dismissal was argued upon the appeal, nor do we well see how they could be successfully maintained. The lease defendant claimed to have had assigned to him merely as security for moneys which he had advanced to the plaintiff, and reassigned it to her before he left her premises; and while the evidence as to damages was somewhat loose, it was the best which could be given under the circumstances.

After the defendant had introduced his evidence, the court charged the jury on the question of the statute of frauds in exact accordance with the decisions of the court of appeals as above-stated, and directed them that if they found a verdict in favor of plaintiff, they should state how much if anything they found for each month of the term after the defendant had left plaintiff’s house; and they thereafter returned with a verdict by which they found that the plaintiff was entitled to the sum of $270.83 for the; month of June, 1888, $106.50 for each of the months of July, August and September, 1888, and $53.25 for the month of October, making a total of $643.58, together with $141.62 interest, or an aggregate of $785.20. The defendant made a motion for a new trial, among other things, on the ground that the damages were excessive. The jury allowed the full amount of the contract price for the month of J une, which was to include the board of defendant and his assistant, notwithstanding the court charged that for that month the value of the defendant’s board should be deducted. This she testified cost her about four dollars a week each person, which for the defendant and his attendant would have amounted to thirty-two dollars for that month, and consequently should be deducted from the $270.83, leaving $238.83 for the month of June. As for the months of July, August and September, the amount allowed was only for the profits the plaintiff would have made had the defendant performed his agreement. We think, on the evidence, and in consideration of the fact that the testimony tended to show no occupants could be procured for the rooms during these months, this was just and fair. As to the month of October, they found but $53.25, and that probably was because the court charged the jury that for that month there was no evidence but that she could have obtained boarders had she been in a position to do so, and consequently, acting upon that suggestion, the amount was reduced as above stated.

But defendant contends that nothing whatever should have been allowed after the month of June, because she had put it out of tier power to fulfill her contract by surrendering the premises in July, but the evidence shows that the defendant before that time, and in the latter part of May, absolutely refused to remain with her longer and moved away from her premises. At that time she was ready and willing to perform her contract, and continued ready and willing for more than a month thereafter. Under such a condition of facts, it was not necessary for her again to tender performance on her part. The surrender of her house to her landlady instead of depriving the plaintiff of all claim for damages, may justly be regarded as an effort on her part to reduce the damages sustained by her, and it was equivalent to letting them on his account at the price they cost the plaintiff, leaving her claim for the stipulated payment to be made by the defendant reduced by the amount of rent saved by the surrender.

The judgment should therefore be modified by reducing the same by thirty-itwo dollars, with interest thereon from the 1st day of July, 1888, and as so modified should be affirmed, with costs, for the reason that the defendant, upon the coming in of the verdiqt, did not point out the excess in the amount found for the month of June over that which the judge had charged; had his attention been specifically called to this, he would doubtless have reduced the judgment at once without the necessity of an appeal.

Bischoff and Pryor, JJ., concur.  