192 P. 412 | Or. | 1920
There are two reasons to sustain the plaintiff’s contention that the court erred in granting a judgment on the pleadings.
In 20 Cyc. 308, it is said:
“A declaration or complaint on a contract, which •is required by the statute of frauds to be in writing, need not contain an allegation that it is in writing. There is a'presumption to that effect which will save the declaration on demurrer.”
This is the general rule, and is the rule established in this state: Hedges v. Strang, 3 Or. 18; Southwell v. Beezley, 5 Or. 143; Albee v. Albee, 3 Or. 321.
It may be that the contract in this case will turn out to be only an oral contract, and in that event the plaintiff might possibly be embarrassed under her present pleadings. But, as we have said before, the court could not pass upon this question in a drastic way by judgment on the pleadings, unless the fact that the contract was oral admittedly appeared therefrom, which is not so in this case.
The judgment of the court below must be reversed and the cause remanded for further proceedings.
Reversed and Remanded.