9 Colo. App. 23 | Colo. Ct. App. | 1896
delivered the opinion of the court.
McRae, the defendant in error, sued Salomon on.a eon-tract of employment, under which he was entitled to receive a stipulated wage, and averred performance. On the termination of the contract, Salomon refused to pay him some $292.64, for which he brought this suit. The contract and its terms were admitted. By way of defense and counterclaim, the defendant set up representations alleged to have been made by McRae respecting the extent of his' acquaint
The first proposition respects the absence of a plea of the statute in the plaintiff’s replication. Counsel attempt to support their contention that the statute of frauds must be pleaded in order to become available'by reference to a case decided by this court (Hamill v. Hall, 4 Colo. App. 290), wherein it is said: “The statute was not pleaded, which alone is sufficient' answer.” The opinion does not support the proposition. According to all the authorities in this state, the defense of the statute of frauds is a matter of evidence rather than a matter of pleading. The brief sentence contained in the opinion of this court which has been referred to is in no sense opposed to this general doctrine. The opinion was not rested on that proposition, nor was the judgment based on it, though as a. legal proposition the statement
This analysis will serve two purposes: It disposes of one branch of the contention of plaintiff in error, and advises the profession of the limits within which the doctrine stated in Hamill v. Hall can be applied.
A collateral inquiry growing out of this question of pleading and practice is presented by the situation of the pleadings in the present suit. The plaintiff by his replication denied the agreement, and insisted that thereby the statutory defense was available, and he could insist on his objection to any proof which did not embrace an agreement properly exe
This proposition being disposed of, we are then brought to the inquiry whether the evidence which the defendant offered in support of his counterclaim was admissible. We conclude not. There was no attempt whatever to prove any agreement, unless one is properly deducible from the appearance of the letters “ O. K. McR.,” which appear on the face of the bills with which the defendant seeks to charge the salesman. The defendant conceded that the letters by themselves made no contract or agreement, but attempted to supply the necessary ingredients required by the authorities by proof of a use and custom which would give to those letters a distinct and specific signification. We do not find any of the authorities go to this limit. The essential terms of the agreement must be ascertained by the writing itself or by reference in it to something else. If the agreement is at all defective, it cannot be supplied by parol proof, and the terms of the agreement gathered not from the writing itself, but from parol testimony concerning the convention of the parties. No well considered case holds a contrary doctrine. Williams v. Morris, 95 U. S. 444; Reed on Statute of Frauds, vol. 1, sec. 398; Hall v. Soule, 11 Mich. 494; Wright v. Weeks et al., 25 N. Y. 153.
According to all the authorities, the contract which is offered and which is supposed to take the agreement out of the operation of the statute must be complete in its terms, and therefrom the court must gather the conditions and be able to say that substantially the entire contract is expressed in the writing.
It is likewise held that the omitted terms and conditions
The evidence offered in this case was far below the level of what these authorities require. There was neither the expression of an agreement,- nor was there a memorandum in writing purporting to contain it, nor any other thing found in the evidence offered, save the letters which have been referred to. These of themselves make no contract. Neither parties nor consideration are expressed; there is a total want of any statement of what the agreement of the parties was, or the circumstances under which one was to be bound and a cause of action come to the other.
We conclude the court, did not err in excluding this testimony, and that the judgment entered for the plaintiff on his proof was entirely correct, and it will accordingly be affirmed.
Affirmed.