103 Ga. 661 | Ga. | 1898
The contract, which is the basis of the plaintiff’s action in this case, is such a one as the statute of frauds requires to be in writing. Civil Code, §2693, 7. Inasmuch as the declaration did not disclose the fact that the contract was in writing, counsel for defendant in error contended that the court did not err in dismissing the same upon demurrer." Neither the petition nor the amendment thereto sets forth whether or not the contract was in writing; hence the question arising in this case is: Does the law of pleading require the plaintiff who brings an action on such a contract to allege in his petition that the same was in writing? The defense of the statute of frauds, like that of a plea of usury, is in the nature of a personal privilege, of which the defendant can avail himself or not, as he sees proper. Such defenses are not usually a subject-matter of demurrer, hut of pleading and proof. Where the statute, in derogation of the common law, requires certain contracts to be executed in a prescribed manner in order to be binding upon the parties, the law will not presume, in the absence of proof, that either party has violated the statute. In the case of Long v. Lewis, 16 Ga. 154, the suit was upon a contract embraced within the provisions of the statute upon the subject of written agreements. Neither the declaration nor the proof showed whether or not the promise relied on for a recovery was in writing. A motion for nonsuit was made, and this court decided that the same was properly overruled. On page 162 Benning, J., delivering the opinion, said: “As to the first ground, it is sufficient to say, that it does not appear, from the declaration or the proof, that the contract was not in writing. The contract may have been in writing. And as an illegal act is not to be presumed, it is not to be presumed that the contract was not in writing.” We quote the following from the opir
The decisions of our court upon the subject are sustained by an unbroken line of authority, from some of which we will now proceed to quote: “It is now well settled in this country, that in a suit at law or in equity upon a contract affected by the .statute, the declaration or bill will be sufficient if it allege a ■contract generally, without stating whether it is in writing or not.” Browne on the Statute of Frauds, § 505. The same ■author, in section 505 a., states that the general tendency of judicial opinion in England has been against the sufficiency of a bill in equity unless it alleged that the agreement was in writing. He adds, however, “At law, on the other hand, the rule in England has been (as both in equity and at law in this country), that it is sufficient since the statute, as it was before, to allege an agreement generally, which throws it on the defendant to allege that it is not in writing.” Bliss on Code Pleading, § 312, after quoting the text from Stephen above cited, says: “The rule as thus given by Mr. Stephen referred ■especially to contracts and conveyances required by the statute of frauds to be in writing; and, under it, it was held to be sufficient to charge the defendant’s liability as.before its adoption, leaving it to be pleaded, or, if the contract be denied, to be enforced in submitting evidence. Thus, the statute, instead of affecting the statement of the facts constituting the cause of action, although an additional fact was rendered necessary, only required the party to show, upon the trial, that he had complied with it.” 1 Estee’s Pleadings, §320, declares: “In pleading a contract which the statute of frauds requires to be in writing, e. g., a contract relating to lands, it is not necessary to allege the facts relied on to take the case out of the statute. It is sufficient on demurrer to allege that a contract was made. Such an allegation is to be understood as intending a real contract — something, which the law would recognize as such.
Judgment reversed.