83 Ala. 445 | Ala. | 1887
The complaint sets forth a contract for the employment of plaintiff as book-keeper for one year, from and including the day on which it was made. The defendant pleaded the general issue, and the statute of frauds. The court instructed the jury, if they found that defendant employed plaintiff for twelve months, from the first day of August, 1885, then the burden was on the defendant to show that the contract was made on an anterior day: in other words, that notwithstanding the complaint alleges a contract valid in form, though not in writing, the onus is on the defendant to prove the invalidity, by proving a contract required to be in writing by the statute of frauds. It may be regarded as a rule, without exception, that the burden of establishing any disputed fact is on the party holding the affirmative, whether plaintiff or defendant. When the defendant seeks to avoid a right of the- plaintiff, by affirming an independent fact, it is incumbent upon him to prove such fact. But the plaintiff is bound to make out his case, in the first instance. Until this is done, the defendant is not required to offer evidence to disprove the claim asserted by plaintiff; and if the whole evidence introduced by both parties in reference to a disputed fact, affirmed by the plaintiff, is equally balanced, he must fail in his suit. — Lehman Brothers v. McQueen, 65 Ala. 570.
At common law, the defense of the statute of frauds could be made on the general issue; but, under our system of pleading, it must be specially pleaded, when it does not appear from the complaint that the contract declared on is one required to be in writing, and is not in writing, or else the defense is considered as waived. The complaint does not aver whether the agreement was in writing or verbal. In declaring on a promise required by the statute to be in writing, it is not necessary to aver that it was so made. Notwithstanding the general issue was pleaded, had the defendant failed to plead the statute of frauds, it would have been competent for the plaintiff to prove, by parol evidence, a con
Beversed and remanded.