
    CRANE v. POWELL.
    
      N. Y. Court of Appeals ;
    
    
      October, 1893.
    [ Aff’g 46 State Rep. 668 ; s. c., 19 N. Y. Supp. 220.]
    i. Pleading ; Statute of Fraudsl\ Where a complaint on contract does not show the contract sued on to be invalid under the Statute of Frauds, the statute is waived by defendant unless » specially pleaded as a defense, and cannot be taken advantage of under a general denial.
    
    8. Trial; Dismissal of Complaintl\ It see?ns, that the Statute of Frauds merely introduces a new rule of evidence and does not make a contract not complying with it illegal; and therefore, although plaintiff prove only an oral contract, defendant cannot for the first time interpose the statute by a motion to dismiss the complaint.
    Appeal from a judgment of the General Term of the N. Y. Common Pleas, which modified, and as modified affirmed, a judgment entered upon a verdict for plaintiff ; and also affirmed an order denying defendant’s motion for a new trial.
    Action for breach of a contract to rent brought by Julia M. Crane against Seneca D. Powell.
    • At the trial a verdict was given for- plaintiff.
    
      The General Term affirmed the judgment for plaintiff, holding that tb,e Statute of Frauds must be specially pleaded to be available [reported in 46 State Rep. 668; S. C., 19 N. Y. Supp. 220].
    The further facts are fully stated in the opinion.
    
      Henry Major (C. Godfrey Patterson, attorney), for appellant
    I. Defendant could avail himself of the Statute of Frauds under his general denial ¡’especially as it appeared by plaintiff’s own evidence that the contract was invalid under the statute (citing Milbank v. Jones, 127 N. Y. 370; Russell, v. Burton, 66 Barb. 539; Oscanyan v. Arms Co., 103 U. S. 261 ; Cary v. Western Union Tel. Co., 20 Abb. N. C. 333 ; Blanck v. Littell, 9 Daly, 268; Amburger v. Marvin, 4 E. D. Smith, 393 ; Gibbs v. Nash, 4 Barb. 451 ; Ontario Bk. v. Root, 3 Paige Ch. 480 ; Champlin v. Parish, 11 Id. 405 ; Elting v. Vanderlyn, 4 Johns, 237, 239; Alger v. Johnson, 4 Supra. Ct. (T. & C.) 632 ; Harris v. Knickerbacker, 5 Wend. 638 ; Cozine v. Graham, 2 Paige, 177; Duffy v. O’Donovan, 46 N. Y. 223, 226; Marston v. Swett, 66 Id. 206; Barrein v. Southack, 7 N. Y. Supp. 324 ; May v. Sloan, 101 U. S. 231, 232; Dumphy v. Ryan, 116 Id. 491, 495).
    
      John W. Weed, for respondent.
    I. The defense of the Statute of Frauds is not available to defendant because it was not pleaded (citing Porter v. Wormser, 94 N. Y. 450 ; Hamer v. Sidway, 124 Id. 538 ; Wells v. Monihan, 129 Id. 161 ; Oliver v. Moore, 53 Hun, 472 ; Ambler v. Skinner, 7 Robt. 561, 563).
    
      
       See note at the end of this case.
    
   O’Brien, J.

The plaintiff recovered damages for the breach of an agreement, which, on the trial, appeared to be oral. The complaint alleges that the plaintiff, in the month of October, 1887, was in the possession under a lease of a house in the, city of New York, and that she entered into an agreement with the defendant whereby the defendant leased from her, for the term of one year from the first day of November, 1887, the two 'front rooms on the second floor, and the back parlor and extension room, with the use of the front parlor on the first floor, with board and attendance to be furnished during the time by the plaintiff for the defendant and his assistant or associate in business, for the sum of $3,250, payable in equal monthly payments of $270.83 in advance. The defendant •yvas a practicing physician, and the rooms were intended, in part, at least, to serve the purpose of an office, in which the defendant was to carry on his business. The defendant, in pursuance of this agreement, entered into and took possession of the rooms, and used them for the purpose intended, and he and his associate were furnished with board and attendance until the month of June, 1888, when, without the consent of the plaintiff, he abandoned the premises, and refused to further perform the agreement on his part, though the plaintiff was at all times ready and willing to perform on her part. It was also stipulated, as a part of said agreement, that the defendant, for the purpose of his business, should have the privilege of affixing, in a suitable place on the front of the house, his business sign, and that in pursuance of that right, conferred by the agreement, he did affix, upon taking possession on the first of November, at the side of the front door, a metallic sign with his name and professional business upon it, and also words and figures indicating when he could be found by patients and callers at his rooms in the house. The judgment appealed from was recovered by the plaintiff as damages for a breach of this agreement. It appears that he paid the stipulated monthly payments only up to June 1, 1888, and the plaintiff claims that on or about July 1 thereafter, in consequence of the defendant’s refúsal to further perform his agreement, her home and business were broken up and she was obliged to surrender her lease, which then had about two years to run, to her landlord. The jury allowed the plaintiff for the month of June the whole of the monthly payment, but the General Term modified the damages for that month by deducting what it would actually cost the plaintiff to furnish board for two persons during that time, and for the four remaining months of the time the plaintiff recovered only the profits which she would have made had the defendant performed.

The defendant’s answer admits that during the time he was engaged in business as a physician, and that the plaintiff, at the time of the alleged agreement, was the lessee of and in possession of the house, and all the other allegations of the complaint were denied, but no other defense was pleaded. At the trial it appeared that the contract sued upon was not in writing, but the defendant made no objection to oral, proof to establish it, and the plaintiff was permitted, without objection, to testify to a verbal agreement to sustain the allegations of the complaint. When the plaintiff rested, however, and again at the close of the case, the defendant moved to dismiss the complaint, on the ground, among others, that as the agreement was not in writing, and as it was not to be performed within one year from the making thereof, it was void by the Statute of Frauds. The court refused to rule in accordance with this request, and the defendant excepted. The defendant, in his own behalf, testified that there was no time specified for the duration of the agreement, and there was a sharpmonflict in the evidence between him and the plaintiff, who claimed that it was to last for one year. The plaintiff’s version of the transaction was sustained in some degree by circumstances and by proof of admissions claimed to have been made by the defendant. That question was submitted to the jury by the learned trial judge, with proper instructions, and the verdict must be taken as a conclusive determination of the issue. But the learned judge distinctly ruled and charged the jury that the defendant was in no position to urge the invalidity of the contract under the Statute of Frauds, by reason of his omission to plead that defence, and to the ruling and the charge to the same effect there was an exception. The result in the courts below thus turned upon the omission of the defendant to plead the statute, and the first and perhaps only question presented by the appeal is one of pleading. Preliminary to that question it should be observed that contracts that by their terms are not to be performed within one year were valid at common law, though not in writing, but the statute enacted that thereafter such agreements should be void unless reduced to writing, and, therefore, a new defense was created with respect to such agreements as were within the statute. The Statute of Frauds does not prohibit the making of any agreement in any way that the parties may see fit, nor render them illegal or immoral if not made in some particular way. It simply requires that certain agreements must be proved by a writing. It introduced a new rule of evidence in certain cases without condemning as illegal any contract that was legal before. The vital fact that was in issue in this case was whether the agreement set forth in the complaint was made. The jury found that it was, and it might be a question whether this court can review that finding upon the record as it stands. The motion to dismiss the complaint presents the question whether there was any evidence of the contract and nothing else. If there was any proof to. establish the agreement sued upon or tending to establish it (within the rules sanctioned by this court) then the finding is beyond the power of review and is conclusive. A material fact may sometimes be found by a jury upon other than strictly legal evidence. When proof is offered to establish it that is not of the quality or character required by law, and it is not objected to, the other party is deemed to assent to another mode of proof of an inferior or secondary nature, and when such proof is in the case, the error, if any, is not reached by a motion to dismiss the complaint. Now, the plaintiff in this case gave proof of an oral agreement which showed that the minds of the parties met, and that there was mutual assent with reference to the subject-matter, and this is ordinarily the very essence of a contract.. It tended to sustain the complaint, as the defendant did not elect to insist upon the statutory form of proof, but virtually assented to the mode of proof that had always been sanctioned by the rules of the common law. Under these circumstances, it seems to me that we cannot say that the finding of the jury is without any evidence to sustain it, or that the defendant’s exception to the refusal of the trial judge to dismiss the complaint is good.

In Flora v. Corbean (38 N. Y. 111), it was held that where testimony tending to establish a material fact, although incompetent in its nature, is received without objection, the party has a right to insist upon the facts shown thereby or based thereon (Sharpe v. Freeman, 45 N. Y. 802, 808 ; Matter of Yates, 99 Id. 94, 101).

So it was held in Howard v. Sexton (4 N. Y. 157), that a witness might be convicted of perjury in falsely swearing to a parol promise within the Statute of Frauds, although that mode of proof would have been incompetent if objected to.

Judge Gardner, in the opinion of the court, remarked: “ The evidence was material, for it proved the promise. It was not, perhaps, competent, if the objection had been taken in season. All secondary evidence becomes incompetent if objected to. But if the parties choose to rely upon it, a witness is not thereby absolved in conscience or law from his obligation to speak the truth.” The defendant’s contention upon this appeal cannot be sustained, unless we hold that the plaintiff’s testimony, showing an agreement by parol, amounted to nothing and must now be treated as if not given. The experience of anyone familiar with trials in the first instance is that nothing is more common than to give proof of facts, which is not strictly competent, but which, if not objected to, may be the basis for findings which are beyond the power of this court to review. The defendant’s exception to the refusal to dismiss the complaint raises no question here, except the presence in the record of any evidence whatever for the consideration of the jury upon the issue raised by the answer as to whether the agreement alleged in the complaint was made or not. There were, according to some of the cases, two methods in which the defendant could have raised the question that he is now seeking to review, namely, by objection to the proof given, or by specifically pleading the Statute of Frauds as a defence. But he has omitted to avail himself of either the one or the other. When the statute is set up as a defence, the objection to any other mode of proof than that required by the statute is to be deemed as made in advance, and the defendant may raise the question at any time before the case is submitted to the jury. If the defendant neither pleads the statute nor objects to what may be called the common-law proof of the agreement, it ought to be held, I think, even upon the authority of the earlier cases, that he has waived the objection.

These views are confirmed and illustrated by the application of a principle which is settled beyond debate. When the complaint alleges a verbal agreement within the statute, and the defendant, by his answer, admits it without pleading the statute as a defence, he is deemed to have waived its benefits (Cozine v. Graham, 2 Paige Ch. 177 ; Vaupell v. Woodward, 2 Sandf. Ch. 143 ; Harris v. Knickerbacker, 5 Wend. 638; Brown on St. of Frauds, §§ 135, 508; Duffy v. O’Donavan, 46 N. Y. 226 ; Marston v. Swett, 66 Id. 206).

Now, all that the defendant admits in such a case is the existence of a verbal agreement, void by the statute. But, nevertheless, the law treats it as valid and binding, since the defendant, by omitting to raise the question at the proper time and in the proper way, is deemed to have waived the necessity of proof such as the statute requires.

If this constitutes a waiver why not hold that any other course equivalent to it is a waiver also ? What real difference can there be in principle between such a case and the one at bar, where the defendant, failing to plead the statute, allowed verbal proof to be given of the agreement alleged in the complaint at the trial without objection ? It is difficult to show that there is any satisfactory distinction in reason between the two cases.

But the important question in the case, and upon which we prefer to let the decision rest, is whether, in the light of the adjudged cases, it is not necessary for a defendant who intends to avail himself of the benefit of the statute, as a defence to an action for damages for breach of a verbal agreement, within the statute, to specifically plead it.

It is safe enough to premise that the authorities are not all in harmony on this question any more than they are upon many other questions with respect to the construction and application of the statute itself. In England, under the rules framed in pursuance of the Judicature Act, and in some of our sister States, it is necessary to plead the statute (Am. & Eng. Ency. of Law, p. 747, vol. 8, note 2 ; Graffam v. Pierce, 143 Mass. 386 ; Lawrence v. Chase, 54 Me. 196; Farwell v. Tillson, 76 Id. 227; Bird v. Munroe, 66 Id. 337, 346; Boston Duck Co. v. Dewey, 6 Gray, 446).

In this State cases may be found where the opinion is expressed that the defendant may avail himself at the trial of the benefit of the statute, under the general issue, by objection to verbal proof of the contract. Some of these cases and, perhaps, the principal ones, have already been cited to show when and how the defendant is deemed to have waived the benefit of the statute by admitting the allegations of the complaint. It is proper, I think, to observe that they are cases where the complaint was admitted in some way or the decision was before the Code or founded upon authority antecedent to it. The recent cases in this court sustain the view that it is necessary to plead the statute. In Porter v. Wormser (94 N. Y. 450), Judge Andrews said : “ The general rule is that the defence of the Statute of Frauds must be pleaded. * * * It cannot be doubted that if the defendants had brought an 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 that case the plaintiff had recognized the existence of the contract by bringing an action upon it, and it was held that he was not in a position to question the validity of it under' the statute.

In Hamer v. Sidway (124 N. Y. 538), the action was against the executors of a deceased person upon a verbal promise to his nephew that he would give him a large sum of money at twenty-one, if, in the meantime, he would abstain from the use of liquor, cigars, billiards, etc. The promise was confirmed by a letter from the uncle after the boy became of age. It was insisted that the promise was within the statute. After stating that the deceased had waived the defence by his letter and statements subsequent to the time of performance, the court, Parker, J., delivering the opinion, said : “ 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 defence cannot be made available unless set up in the answer.” In Wells v. Monihan (129 N. Y. 161), the action was upon a written promise to pay the debt of another without expressing any consideration, and it was urged upon the argument here that it was void under the statute. Passing upon that point, Judge FINCH said : “ So far as the defence in this case rests upon the Statute of Frauds it must fail for two reasons. No such defence has been pleaded, and it is not raised by the averments of the complaint, and without one or the other of these conditions the defence, if existing, cannot be made available.”

Without referring to other cases in which the precise point does not seem to have been discussed or noticed, sufficient appears to show the tendency of late decisions in this court. They announce a rule well settled and familiar in analogous cases. The Statute of Frauds is a shield which a party may use or not for his protection just as he may use the Statute of Limitations, the statute against usury, that against betting and gaming, and others that might be mentioned. I take it to be a general rule of universal application that the statutes last mentioned are not available to a party unless specifically pleaded, and there is no reason for making the Statute of Frauds an exception to the rule.

The present system of procedure is founded upon the idea that litigants should, when possible, know in advance the precise questions they must meet at the trial. When a contract is set out in the complaint as the cause of action, and the defendant intends to assail it on some special or statutory ground, the general spirit of the system is not complied with unless notice is given of this intention to the opposing party by the pleadings.

In the solution of this question the provisions of the Code should not be overlooked. The statute may be used as a defence to actions on certain agreements. A defence must now be presented, either by demurrer or answer (Code, § 487).

When the defect in the plaintiff’s cause of action appears on the face of the complaint, the defence must be interposed by demurrer (§ 488). When the complaint does not, as in this case, disclose an invalid agreement upon its face, but it is, in fact, invalid for some reason, the defendant must take the objection by answer (§ 498), and if the objection is not taken in either way, the defendant is deemed to have waived it (§ 499). The conclusion is thus reached that the defendant waived the benefit of the statute in this case by omitting to plead it.

It is claimed by the learned counsel for the plaintiff, that the agreement, as pleaded and proven, was not within the statute since it amounted to a renting of apartments in a city house for business purposes, with board and lodging added, and was, therefore, good as a verbal lease for one year (Blumenthal v. Bloomingdale, 100 N. Y. 558 ; Laughran v. Smith, 75 Id. 205, 209 ; Reeder v. Sayre, 70 Id. 180, 184 ; Oliver v. Moore, 53 Hun, 472 ; S. C. affd., 131 N. Y 589).

It is unnecessary to consider this question, as the conclusion reached with reference to the question of pleading is fatal to the appeal.

The judgment should be affirmed.

All the judges concurred, except Earl and PECKHAM, JJ., dissenting.

Judgment affirmed.

Note on Pleading the Statute of Frauds.

Under the decision in the text, some question may be raised as to the proper mode of taking advantage of the statute in an answer under the New Procedure. Different modes prevailed at common law and in equity respectively.

In the language of the Law of Pleading at Common Law,’ “ to plead ” a public and general Statute, means to state the facts which bring the case under the condemnation of the statute. The court took judicial notice of the existence of the statute. In case of a private, local or foreign statute where the court could not take judicial notice, the pleader must also allege the existence of the statute and state either the substance or the words of the provision relied on. In neither case was he at common law required to go beyond this, and add that he intended to take advantage of the statute; his plea sufficiently indicated that purpose.

The following is the form sanctioned at common law:

Because he saith, that the several supposed promises and undertakings in the said (first and second) counts respectively mentioned were special promises, and each of them was a special promise for the debt of another person, to wit, the said A. P., and that no agreement in respect of or relating to the supposed causes of action in the (first and second) counts of the said declaration, or either of ' hem, nor any memorandum or note thereof wherein the consideration or considerations of the said special promises, or either of them, was or were stated or shown, was or is in writing, or was or is signed by the said defendant, or by any other persons by him thereunto lawfully authorized according to the form of the statute in such case made and provided, and this, etc. 3 Chitty Pl. 909 (14 Am. ed.). Approved in Lawrence v. Chase, 54 Me. 196.

Under the common law practice it has been well held that a plea in these words : “ That the engagement or debt sued on was a promise to assume for the debt, default or miscarriage of another ” is bad on demurrer. The demurrer was thus expressed, that “ said plea is an attempt to plead the statute of frauds without setting out the averments to sustain such a plea.”

Held that the demurrer was properly sustained.

The plea was bad in that it failed to aver further that the contract sued on was not evidenced by a writing signed by the defendant, and expressing the consideration for the promise to answer for the alleged debt, default or miscarriage of another. Hunt v. Johnson (Ala.), 11 So. Rep. 387.

On the other hand in Hotchkiss v. Ladd, 36 Vt. 593 (Assumpsit), a plea of the statute of frauds alleged that the promises mentioned were special promises to answer for the debt of another, to wit, W. K. W., and that there was no memorandum in writing. And it was held that the plea was good.

In Edelin v. Clarkson’s Executors, 3 B. Monroe (Ky.), 31, 1842, a plea that the note sued on “ was given in consideration of a sale of land not evidenced by writing, ” was held not a plea setting up the statute of frauds in bar of the action, but only a plea of failure of consideration.

In equity the rule was different from that at common law, for the defendant’s plea was a statement intended to excuse his refraining from answering, and unusual strictness was applied by the chancellors, especially to pleas of a technical character like the present,

A plea in equity setting up the statute of frauds alleged the existence and substance of the statute so far as relied on, and also stated the facts relied on as bringing the case under the condemnation of the statute, and it has several times been held that where the making of a verbal contract is admitted by defendant, the intention to claim the benefit of the statute must be also expressly insisted on in the plea.

The following is an approved form in the English Chancery.

“ As to so much of the said bill as seeks to compel this defendant or any persons claiming under him to execute a lease in writing of the several lands and tenements in the said bill mentioned, or of any of them or any part thereof pursuant to the pretended agreement in the bill mentioned, and as to any relief thereby prayed touching such lease and agreement, this defendant doth plead in bar, and for plea saith that by an act of parliament made in the twenty-ninth year of the reign of his late Majesty King Charles the Second, entitled, ‘An act for the prevention of frauds and perjuries’ it is amongst other things enacted, that from and after the 24th day of June, 1667, no action shall be brought whereby to charge any person upon any contract of lands, tenements, hereditaments or any interest in or concerning them, unless the agreement upon which such action shall be brought or some memorandum or note thereof shall be in writing’ and signed by the party to be charged therewith, or some other person thereunto lawfully authorized. As by the said act may appear; and this defendant avers that neither he, this defendant, nor any person by him lawfully authorized, did ever make or sign any contract or agreement in writing for making or executing any lease to the said complainant of the same premises or any of them or of any part or parcel thereof or to any such effect as by the Said bill is suggested, or any memorandum or note in writing of any agreement whatsoever for or concerning the demising or leasing or making or executing any lease of the said premises or any of them or any part or parcel thereof to the complainant. And therefore this defendant doth plead the said act of parliament and the matters aforesaid in bar to so much and such part of the said bill as seek to compel this defendant or any person or persons claiming under him to execute a lease to the complainant of the several lands and tenements in the bill mentioned or any of them or any part or parcel thereof pursuant to the said pretended agreement and as to any the relief thereby prayed touching such lease and agreement, and humbly prays the judgment of this honorable court whether he shall be compelled to make any further or other answer,” etc.

The following are the important cases:

Skinner v. M’Douall, 2 De G. &. Sm. 265, specific performance. Defendant alleged that no formal note of agreement charged by the bill was made, and denied that any binding agreement ever existed ; but he did not expressly claim the benefit of the statute of frauds. Held at the hearing, that he was not entitled to any benefit of the statute.

Battell v. Matot, 58 Vt. 271, 1885. An admission on a bill to restrain the cutting down of trees, that defendant had made a verbal contract with the owner for the sale of the trees is a formal waiver of all benefit derivable from the statute of frauds, unless at the same time the benefit of the statute is insisted on in clear and explicit language. It is not sufficient to allege that it was a “ verbal contract,” and that it “ invests the defendant with no title to the trees.”

Compare Rhodes v. Rhodes, 3 Sandf. Ch. 279. Bill for specific performance. The answer denied the contract and alleged that if any agreement was made, it was not in writing, and utterly void in law. Quaere: whether the allegation in the answer could be deemed a sufficient plea of the statute of frauds.

In Schoonmaker v. Plummer [Ill. 1892, 29 N. E. Rep.), 1114 (bill for specific performance of contract to convey title to land), the defendants in their answer, “ assert that there never was any gift of said premises to either of the complainants, and assert that if either or both should testify to such gift, they will, by their statement as they have in their bill, show only such parol gift as is governed by the statute of frauds and perjuries, and of no avail against those defendants, or either of them.”

Held, a sufficient pleading of the statute. “ It is true,” said the court, “ the allegation is not very formal and does not conform to the recognized precedents, but we think it sufficient in substance, especially in view of the fact that the bill on its face alleges the gift or a parol gift. The allegation of the answer seems to show with sufficient certainty that the gift alleged in the bill is a parol gift; that it is obnoxious to the provisions of'the statute of frauds and perjuries, and that said gift is of no avail, that is, is void, as against the defendants.” Decision below affirmed.

Under the Code, all that the answer is required to contain (besides denial) is a statement of any new matter constituting a defense.

The case in the text leaves it perhaps doubtful whether the statute of frauds is new matter constituting a defense, or is merely a special denial required, not by the words of the Code, but by its general policy, as intending that defendant shall give fair notice of the questions to be litigated.

If it be new matter constituting a defense, then the burden of bearing it will be upon the defendant. No case in any jurisdiction seems to have gone so far as that. The recent cases on the point are to the contrary, as follows:

Jonas v. Field, 83 Ala. 445, opinion by Clopton, J., 1887. Action to recover damages for a breach of a contract of employment alleged in employment as a bookkeeper for 12 months. Plea of the general issue and the statute of frauds. The evidence of both sides being in, the court instructed the jury virtually that notwithstanding the complaint alleged a contract valid in form though not in writing, the onus was on the defendant to prove the invalidity, by proving a contract required to be in writing by the statute of fraud s.

Held, an erroneous instruction. The court said: “ At common law the defense of the statute of frauds could be made on the general issue; but, under our system of pleading, it must be specially pleaded, when it does not appear from the complaint that the contract declared on is one required to be in writing, and is not in writing, or else the defense is considered as waived. The complaint does not aver whether the agreement was in writing or verbal. In declaring on a promise required by the statute to be in writing, it is not necessary to aver that it was so made. Notwithstanding the general issue was pleaded, had the defendants failed to plead the statute of frauds, it would have been competent for the plaintiff to prove, by parol evidence, a contract made on the first day of August or on an anterior day ; but the statute having been pleaded, parol evidence was inadmissible to prove an agreement required by the statute to be in writing, citing Lecroy v. Wiggins, 31 Ala. 13.” Decision below reversed.

The court continued:

“ On the plea of the Statute of Frauds, it is incumbent on the plaintiff to establish, either a contract in writing, or a contract not required by the statute to be in writing. The complaint sets out a contract valid in form, and on the pleadings he is required to prove a valid contract. When the statute of limitations is pleaded, the burden rests on the plaintiff to prove a cause of action within the period of the bar. The same rule applies when the Statute of Frauds is pleaded. As to pleas of the statute of limitations and the statute of frauds, the plaintiff is required to show facts which avoid the effect of the plea ; as when he relies on a parol contract, the burden is on him to establish a contract not required by the statute to be in writing.” Citing Marston v. Swett, 66 N. Y. 206 ; Taylor v. Spears, 1 Eng. 381 ; Jones v. Hagler, Ala. 10 So. Rep. 345.

Opinion by Walker, J„ 1891. Ejectment. Plaintiff claimed title through a sale by a trustee named in a deed of trust. The report does not disclose the language of the pleas, but the court in its opinion refers to them as pleas of the Statute of Frauds. There was no evidence that at the trustee’s sale the auctioneer made any note or memorandum of the sale, nor that the purchase money was ever paid, or that the purchaser was ever put in possession of the premises. Plaintiff joined issue on the pleas. After the evidence was closed, defendant requested a direction of a verdict for him, if the jury believed the evidence.

Held, error to refuse. The court say that in giving issue upon • these pleas the plaintiff assumed the burden of showing facts which avoid the effect of the pleas. ‘He put himself in the attitude of affirming that at the time of the sale by the trustee to him, a note or memorandum thereof was made, expressing the consideration in writing and subscribed by the party to be charged therewith, or by some person thereto by him lawfully authorized in writing; and that the purchase money or some part thereof was paid; or that the purchaser was put in possession of the land by the seller. * * Having failed to offer any proof that in the sale by the trustee there was a compliance with the statutory requirements referred to in the pleas, he failed to sustain the burden assumed by his joinder of issue thereon, another defendant was entitled to the verdict. Decision below reversed.

If this conclusion be sound, it is true that the required answer is in effect only a special denial of something which may be expressly alleged in the complaint, or, it may be, which is only assumed or implied by the law from a general allegation of contract without words expressly importing a writing, etc.

The case in the text puts the new rule on the ground that plaintiff is entitled to fair notice that the statute is relied on, and the form used in the case on p. 435, which is substantially that used at common law, seems sufficient for the purpose. There seems no reason for requiring as in a plea in equity against an admitted oral agreement, the technical addition of an express insistence on the protection of the statute.

For other comments on rules unaffected by Crane v. Powell, see 1 Univ. Law Rev. 21.  