Sweetland v. Barrett

| Mont. | Jan 15, 1882

Wade, O. J.

This is an action upon a promissory note given by A. H. Barrett, the defendant, to one Thomas Hoopes, or order, for the sum of $1,260.93, payable one day after date, and by the payee assigned to Wellington W. Sweetland, the appellant.

The answer alleges that in October, 1876, it being understood that Hoopes, the payer of the note, would sell the same for $100, the appellant and respondent entered into an agreement, by the terms of which the appellant promised and agreed to advance for the respondent the sum of $100, and purchase the note for said sum, in consideration of which the respondent promised and agreed to repay to the appellant the said sum of $100, together with interest thereon at the rate of two per cent, per month from date until paid; that under and by virtue of such contract and agreement, the appellant did advance the sum of $100, and did then lay out and expend that sum in purchasing said note from Hoopes, which purchase was made for the sole use and benefit of the respondent, which sum, together with interest thereon, at the rate named, is due and owing to appellant; that by the further terms of said contract, the appellant was to retain the note until the respondent had paid said sum of $100, with interest, as aforesaid.

There was a demurrer to the answer for the reason that the same did not state a defense to the action, and also a motion to strike out the same for the same reason, which demurrer and motion were overruled.

The position of appellant is this: that as it is not averred in the answer that the contract set forth therein was in writing, therefore the court will infer that the same was a parol agreement; and that as there was no time fixed for the repayment of the $100 by the terms of the agreement, and that the respondent fixed the date of such payment by his offer to pay the same and to comply with the terms of the contract by tendering the money in September, 1880, four years after the contract was made, therefore that the contract was within the statute of frauds and void.

We do not agree with counsel for appellant upon either of these propositions. There being no time fixed for the payment of the $100, the same was due and payable at once, or at any time. The meaning and effect of the transaction was that the appellant loaned to the respondent $100, and he was to hold the note to Hoopes as security for the loan.

There is no presumption that the contract was parol. It is well settled that the pleadings need not allege that a contract which would be void ^unless reduced to writing and signed was in fact in writing.

When the pleading alleges an agreement which would be within the statute of frauds unless in writing, it will he presumed to be a written agreement, and if denied, such an one must be proved. 1 Moak’s Van Santvoord’s Pleadings, 206, 674.

It is now well settled in this country, that, in a suit at law or in equity upon a contract affected by the statute of frauds, the declaration or bill will be sufficient if it allege a contract generally, without stating whether it is in writing or not. Browne on Stat. of Frauds, sec. 505.

The statute of frauds has not altered the rules of pleading in law or equity. A declaration on a promise which, though oral only, was valid by the common law, may be declared on in the same manner since the statute as it. might have been before. The writing is matter of proof and not of allegation. Price v. Weaver, 13 Gray, 273.

The judgment is affirmed, with costs, but appellant to pay costs of appeal.

Judgment affirmed.