
    *Julia A. Randall et al. v. Samuel M. Turner.
    1. The finding of the court upon issues of fact, or a verdict of a jury, can- not be reviewed on error, when the record does not show that there was a motion for a new trial for the reason that such finding or verdict was against the law or evidence.
    2. A written assignment of a chose in action, unconditional on its face, in part execution of a contract not intended by the parties to be expressed in the assignment, is not conclusive evidence that the transfer was absolute, but the contract under which it was executed may be shown by other proof.
    3. A verbal agreement for the sale of lands, which has been fully performed on the part of the vendor, is not rendered void by the statute of frauds.
    4. When an answer of a guardian ad litem for an infant defendant does not, in express terms, deny the allegations in the petition as required by the code, but the record shows that it was regarded by the court as such denial, and that the plaintiff was required to prove such allegations: Held, that á judgment rendered against such defendant can not be reversed on error for want of such express denial.
    5. On petition in error to reverse a judgment of the district court affirming a judgment of the court of common pleas, this court is not bound to consider objections to the judgment of the common pleas that were not assigned for error in the district court.
    Error to tbe district court of Hancock county.
    The defendant in error brought an action in the court of common pleas of Hancock county, on the 8th day of January, 1868, against the heirs of John Randall, deceased.
    It is alleged in the petition that the plaintiff, on the 12th day of March, 1856, sold to one G-eorge L. Turner and John Randall a piece of land, for which they agreed to pay him eight hundred dollars — four hundred of which was paid by G-eorge L. Turner, and Randall agreed to pay the remaining four hundred dollars. That at Randall’s request the land was conveyed to said George L. Turner. That afterward, on the same day, Randall requested the plaintiff to receive, in payment for said land, six hundred dollars in stock in the Tiffin and Fort Wayne Railroad Company, and “represented” and “promised” that said railroad, which was not then constructed, “would be completed within a reasonable time,” and that the stock would then be worth the whole amount called for. That relying upon this representation, the plaintiff agreed to receive the stock, on condition that he should retain the same until a reasonable time should expire for the ^completion of the-railroad; and, if the road should be so completed, he agreed to-receive the stock in full satisfaction of the four hundred dollar» unpaid; and, in case of the failure to complete the road in a reasonable time, he was to return the stock to Randall, when the four hundred dollars was to become due, and to be then paid by him to-the plaintiff. That on the first day of the following October, 'Randall died, leaving the defendants his heirs. That administration was granted on his estate, which was fully settled on the 3d day of July, 1860; and the time for commencing actions against the administrators expired before the plaintiff’s right of action under-the contract matured. That on the first day of October, 1862, a reasonable time for the completion of the road expired, when the road was uncompleted and abandoned. That the defendants inherited real estate from Randall. That on the first day of October, 1862, the plaintiff tendered the stock to the defendants and demanded payment of the four hundred dollars, which they refused. Judgment is prayed for four hundred dollars, with interest from. October 1, 1862.
    The plaintiffs in error, defendants below, answered jointly, and: denied that Randall was a party to the contract of purchase and sale of the land; but they say that George L. Turner bought it for-one thousand dollars, and unconditionally paid therefor six hundred dollars in said stock. And they aver that Randall gave the stock to said George L. Turner, his son-in-law; and, to save two assignments, transferred it to the plaintiff, and did so without any conditions or representations whatever. They deny that Randall in any manner ever promised to pay the four hundred dollars, or ever agreed to take back the stock. They deny that the railroad is-abandoned, and that Randall made any representations about it in any manner whatever.
    By way of defense, they further answered that the promise mentioned in the petition was a promise to answer for the debt of another party; that the agreement was not to be performed in a year; and that no note in writing was made of such promise or agreement.
    At the November term, 1864, a guardian ad litem was *appointed for the infant defendants, who answered that they were-ignorant of the matters set forth in the petition, and pray the protection of the court.
    
      The cause was then tried, upon the pleadings and testimony, to 'the court, which found that the allegations in the petition were true, and that the answer of the defendants in conflict therewith was ■untrue; and judgment was rendered for the plaintiff, now defendant in error.
    It appears from the journal entry (though not otherwise) that a motion for a new trial was made, and overruled.
    A bill of exceptions was taken, setting forth all the testimony, which is sufficiently referred to in the opinion of the court.
    'On petition in error, the district court affirmed the judgment of the court of common pleas; and this petition in error is brought to reverse these judgments.
    
      J. B. Bunn (of Brown & Bunn), for plaintiffs in error:
    1. The common pleas erred in rendering judgment against the plaintiffs in error and for defendant in error on the facts proven; and in admitting oral evidence to contradict the written contract of transfer made between defendant in error and John Randall, deceased. Thurston v. Ludwig, 6 Ohio St. 1; Webster v. Paul, 10 Ohio St. 581; Howard v. Thomas, 12 Ohio St. 201; Rennick’s Adm’r v. Rennick, 3 Harris, 66; Graves v. Friend, 5 Sandf. (N. Y.) 568.
    The findings of fact upon all the evidence are subject to review 55 Ohio L. 81; Westfall v. Dungan, 14 Ohio St. 276.
    2. The common pleas erred in rendering judgment against the plaintiffs in error in favor of the defendant in error, on an unwritten contract not to be executed within .five years, notwithstanding •the plea of the statute of frauds and perjuries.
    As defendant bought the stock in March, 1856; and as, if any -conversation was had about returning the stock, it must have been an agreement to resell, I claim that such agreement, having five years to run, is within the statute of frauds. The contract is not taken out of the statute on the ground that it was wholly completed •on defendant’s part, for he ^states in his petition that he was to redeliver it to Randall, October 1,1862, if the condition failed.
    3. The court erred in rendering judgment against Randall’s heirs •on a contract which matured against them gs such heirs more than •one year before the action was brought. The claimant is substantially bound to plead this statute. S. & C. Stat. 610, sec. 228.
    4. It was error to render judgment against the infant defendants ¡below, no legal answer having been filed for them. The guardian. pleads ignorance, and substantially admits the claim. rThe answer makes no issue. Code, sec. 100; Headly v. Roby, 6 Ohio St. 521; Sturges v. Longworth, 1 Ib. 544-560; Litchfield v. Burwell, 5 How. Pr. 167.
    
      O’Neal, Blackford & Harsh, for defendant in error:
    1. At the time of the settlement of John Randall’s estate, the' claim of defendant in error had not matured, nor had four years from the date of the administration bond then expired. S. & C. Stat. 585, sees. 101-103.
    Being a claim for which the administrators could not have been sued, the action was brought against the heirs who had inherited from the intestate. S. & C. Stat. 610, secs. 227, 228.
    2. The findings of the court, on the trial of the issue of fact made by the pleadings, can not be reviewed on error, for the reason that the record does not show that a motion for a, new trial had been made, based on the ground that the verdict or finding of the court was against the-evidence, and overruled. Code, sec. 392; Westfall v. Dungan et al., 14 Ohio St. 276.
    The motion made may have been founded on any of the ground» specified in section 693 of the code, but which does not appear.
    3. But if examined on the evidence in the record, there could be at most but a difference of opinion. McGatrick v. Wason, 4 Ohio St. 567; 5 Ib. 266.
    4. As to the written transfer of the stock. The pleadings admitted the written terms of transfer, but raised an issue of fact only as-to whether it had been received in payment of the plaintiff’s claim, Parol evidence was admissible on this tissue, without contradicting the terms of the transfer or adding thereto.
    5. As to the statute of frauds. The completion of the road was the condition upon which the stock yras to pay the debt. This was likely to extend beyond the year. Yet, it was capable of performance within that time:
    The statute does not mean to include cases not likely to be performed in one year, nor yet those not expected to be performed within that time; but it means to- include agreements only which do not admit of performance within that time. Browne on Frauds (2 ed.), 279, sec. 273, and cases there cited; Lockwood v. Barnes, 3 Hill, 128; Moore v. Fox, 10 Johns. 244; McLees v. Hale, 10 Wend. 426; 15 Ib. 336; Kent v. Kent, 18 Pick. 569; Russell v. Slade, 12 Conn. 455.
    Tbe contract was fully executed on the part of Turner. The statute never applies to cases where executed on one side — becomes-an action then only for goods sold and delivered. Browne on Frauds, 119, sec. 117; Pomeroy v. Winship, 12 Mass. 514; Wilkinson v. Scott, 17 Ib. 249; Dearborn v. Parks, 5 Greenl. (Me.) 81; Shoyer v. Niles, 23 Vt. 494; Bower v. Bell, 20 Johns. 338.
    The claim made against Randall was not for the debt of another. He made the purchase himself, as the petition charges, and, by his direction, the conveyance was made to'another. These averments the court found true.
    The claim matured October 1, 1862, at which time- he tendered the stock back, and afterward and long before the expiration of the year allowed by the statute, he brought his action. S. &. C. Stat. 611, sec. 228.
    6. The Supreme Court will look only to such errors as were assigned in the district court. Davis v. Hines, 6 Ohio St. 473.
    It was not assigned for error in the district court, that there was no sufficient answer of a guardian ad litem.
    
    The answer of the guardian ad litem was sufficient. The plaintiff should not suffer if the guardian did not formally join issue with the petition. It was at issue by the other answers, and so tried. Massie v. Donaldson, 8 Ohio, 381; 2 Code Rep. 28; Sturges v. Longworth, 1 Ohio St. 545.
    The statute of limitations was not pleaded below. No nsuch question is anywhere made except in the assignment of error.
    
      J. B. Bunn, for plaintiffs in error, in reply:
    In Westfall v. Dungan, 14 Ohio St. 276, there was no motion for a new trial.
    The statute does not require the ground of the motion to be stated therein. 55 Ohio L. 81, sec. 4.
    The proposition that Turner was to hold the stock.subject to Randall’s order contradicts the written contract of sale, and can not be proved by parol.
    It is said the railroad might have been finished in a year, and hence the statute of frauds does not apply. This would be true if the completion of the road completed the contract. Here, the completion of the road defeats the contract, and hence the statute applies. Brown on Stat. Frauds, 685, 686, sec. 282; Lapham v. Whipple, 8 Met. 59; Hill v. Hooper, 1 Gray, 131.
    Turner did not fulfill his part of the pretended contract. The record contradicts it.
    If Randall delivered the stock as a collateral, an action on the original claim or debt, to which the stock was collateral, was not barred, and defendant’s right of action against Randall’s heirs, after settlement of the estate, was defeated. Dow v. Tuttle, 4 Mass. 414; Allen v. Kemball, 23 Pick. 473; Central Bank v. Willard, 17 Pick. 150, 280.
    It is absurd to Say that the infants put the petition at issue by answer, when they had no guardian ad litem. Code, sec. 32.
    It was error for the court not to see that the guardian put in a proper answer. The infants should not suffer by an answer bad in law.
   Day, C. J.

It is claimed, on the part of the plaintiffs in error, that the findings of fact by the court may be reviewed in this case. It appears from the journal entry of the court that the “defendants moved for a new trial which was overruledbut the record does not show upon what grounds or reasons the motion was based. It may have been, for aught *that appears, for any one of the eight causes for which a motion for a new trial may be made under the 297th section of the code. But a review of findings of fact on error is authorized by the statute only when the motion is based on one of the causes enumerated in said section, viz., that the finding is against the law or evidence. S. & C. Stat. 1155. The truth of the findings of the court must then be presumed, especially as the record shows that there was evidence tending to sustain them. Westfall v. Dungan, 14 Ohio St. 213; Hoffman v. Gordon, 15 Ohio, 211.

From the evidence as spread upon the record, we are unable to ■say that the finding of the court upon the issues was not fairly ■sustained by the proof.

The finding does not seem to be- complained of but in two particulars : one in matter of fact, and the other of mixed law and fact.

It is claimed that the stock was to be returned in five years after the date of the contract. This is claimed on the testimony of a witness who, after stating the terms of the contract to be substantially as alleged in the petition, says, in addition, that both parties .agreed that five years would be a reasonable time to complete the road. But looking to the whole evidence and the subject-matter -of the contract, also considering that they would not probably have agreed that a “reasonable time” should be the limit for the completion of the road, if they intended to fix it at five years, we think the court might well hold the agreement of the parties to be, that the stock should be kept until a reasonable time should elapse for the completion of the road, under all the circumstances attending its construction; and might regard what was said about its being completed ;n five years, as a mutual expression of opinion, that it would be completed by that time. This point, however, was not in issue, and may fairly be regarded as conceded by the pleadings; for it was essential to aver in the petition when a reasonable time for the completion of the road elapsed. It is accordingly alleged that it expired October 1,1862. This averment is not denied in the answer.

It is claimed that the written assignment on the certificate *of stock is conclusive that the sale was absolute and not conditional, as stated in the petition; and that, therefore, the court should have found for the defendants in the action.

No objection to any of the evidence was interposed, but it is claimed that the written assignment, in law, excluded the consideration of any evidence of a contract but that contained in the written transfer of the stock. It is true that the assignment was, on its face, absolute and without condition. The assignment was not intended to express the contract between the parties, but was a part execution of a contract that required this, with other things, to be done for a specific purpose. No effort was made to vary the written assignment. That was as the parties intended it should be. The use, however, to be made of the assignment, was to be determined by future events. Whether it was received in absolute payment of a ■debt or not, was the issue between the parties ; and proof upon this question, showing the terms'upon which it was held, did not modify the written paper.

The case of Howard v. Thomas (12 Ohio St. 201) is cited to sustain the claim of the plaintiffs in error — that the writing must control. But we think this case falls under the exception to that rule recognized in the opinion in that case, viz: “ Cases where an instrument executed is not intended to express the entire agreement of the parties, but is in execution of some distinct and separable part.”

The findings of the court must, then, be taken as true.

That being the case, the defense grounded on the statute of frauda —that the promise alleged in the petition was for the payment of the debt of another — is negatived by the facts found by the court The claim sued upon was the debt of the decedent, and not that of another.

The further claim under that statute — that the contract stated in the petition was not to be performed within a year — is also negatived by the facts found, as it is, virtually, by the pleadings themselves. The most that can be claimed, is that it was not likely to be performed in a year; but it was clearly susceptible of performance within that time. The road might have been abandoned within a year, and thus a reasonable time to wait for its completion would have expired. There *was, surely, nothing in the contract that fixed the time of performance beyond a year. It is well settled, by the authorities upon this point, that the contract was not within the statute of frauds. Browne on Frauds, 279, sec. 273, et seq., and authorities there cited. Moreover, the suit being for the purchase money of the land, and the contract having been fully performed on the part of the vendor, the statute did not apply.

The claim that the action was barred by the limitation of one-year provided in section 228 of the “ act to provide for the settlement of the estates of deceased persons ” (S. & C. Stat. 610), is de feated by the facts found by the court; for the action accrued October 1, 1862, and was commenced in less than four months, viz: on the 8th day of January, 1863.

The only remaining error claimed is, that there was no legal answer for the infant defendants, because the answer of the guardian-does not expressly deny the allegations of the petition, as he is required to do by the 100th section of the code. But the guardian answered, stating that the infants were ignorant of the matters in controversy, and prayed the protection of the court; and, whether the legal effect of the answer was or was not, under said section, a denial of the averments in the petition, and sufficient to put the plaintiff upon proof, it is fairly apparent from the record that it was treated by the court as a denial of the petition; so that the infants were not prejudiced by the want of a formal denial. The error, if any there was, existed in form only, and, under the code, is not to be regarded.

But this objection was not assigned for error in the district court, and, for that reason, npon the authority of Davis v. Hines (6 Ohio St. 473), this court might very properly refuse to consider it, or to reverse the judgment of the district court upon a point that court might, but were not bound, to consider.

Judgment of district court affirmed.

White, Welch, Brinkerhoee, and Scott, JJ., concurred.  