19 N.Y.S. 220 | New York Court of Common Pleas | 1892
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. Prom 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-writings, 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 v.erdict, 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. Por 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 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, (City Ct. N. Y.) 7 N. Y. Supp. 324; Harris v. Knickerbacker, 5 Wend. 638; Gibbs v. Nash, 4 Barb. 451; Cary v. Telegraph Co., 20 Abb. N. C. 333; 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 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 Hamer v. Sidway, 124 N. Y. 548, 27 N. E. Rep. 256, an oral promise was made by the defendant’s testator to pay plain
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 liad 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 June, 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 $4 a week each person, which, for the defendant and his attendant, would have amounted to $32 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.
All concur.