2 Cal. 460 | Cal. | 1852
The opinion of the Court was delivered by Heydeneeldt, Justice, with whom Murray, Chief Justice, concurred.
The contract sued on, says, “in consideration of fifty dollars,” &c. It was proved on the trial, that this money was not paid, and that this consideration was fictitious. Therefore the appellant insists that the contract is within the statute of frauds. In this, however, he mistakes the operation of the statute, which is always satisfied when the consideration is expressed in writing. If there was no consideration, that fact might be set up specially, as a good defence.
The next point made is, that the declaration fails to aver the performance of a condition precedent. This objection comes too late. It should have been taken in the Court below by demurrer. The evidence shows that the performance was proved on the trial, and it is well settled in such cases, that the defect is cured by verdict. See Chitty’s PI. 673; Sand. PI. & Ev. 130; Baily v. Clay, 4 Rand. 346.
Let the judgment be affirmed, with costs.