
    No. 845
    OERGEL v. CIEHANSKI
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7773.
    Decided Oct. 10, 1927.
    First Publication of this Opinion
    Hamilton, PJ., Cushing, J., and Mills, J., sitting.
    Syllabus by Editorial Staff.
    1105. STATUTE OF F R A U D S. — 923. Pleadings. — Not necessary to allege in petition, that contract is in writing, as statute of frauds is rule of evidence.
    Error to Comomn Pleas.
    Judgment reversed.
    Turney & Sipe, Cleveland, for Oergel.
    T. Paul Titus, Cleveland, for Ciehanski.
   FULL TEXT.

PER CURIAM

In this case the trial court sustained a demurrer to the petition on the ground that the petition being a suit on a real estate contract fails to allege that the contract is in writing.

While Section 8621 provides that no action shall be brought, etc., the unbroken line of authorities hold that it is not necessary to allege in the petition that the contract is in writing, as the statute of frauds is a rule of evidence.

The petition was therefore good as against the demurrer and the demurrer should have been overruled.

The judgment will be reversed and the cause remanded with instructions to overrule the demurrer and re-instate the petition.

(Hamilton, PJ., Cushing, J., and Mills, J., concur in judgment.)  