This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
1 See pout, § 516. Qucere, whether, since the form of pleading has be-come well settled in these cases, an amendment would be allowed to the bill, after plea or answer setting up the statute, for the introducing of equitable circumstances.
2 Meach v. Stone, 1 D. Chip. (Vt.) 182.
3 Wood v. Midgley, 5 De G., M. & G. 41; Barkworth v. Young, 4 Drew. 1; Howard v. Okeover, 3 Swanst. 421; Field v. Hutchinson, 1 Beav. 509; Redding v. Wilkes, 3 Bro. C. C. 400. See Van Dyne v. Vree-land, 11 X. J. Eq. 370.
4 Davios v. Otty, 33 Beav. 540; Whiting v. Gould, 2 Wisc. 552; Per-alta p. Castro, 6 Cal. 354. See Walker v. Locke, 5 Cush. (Mass.) 90.
§ 509. The defence of the Statute of Frauds may be set up by plea or answer; or, where the structure of the plaintiff's allegations admits of it, by demurrer. The appropriateness of demurrer has been already indicated in previous sections, where the proper mode of averring the agreement in suit was considered. It may now be regarded as settled in this country, both at law and in equity, that a demurrer is regular where the bill or declaration alleges a contract within the Statute of Frauds, and alleges it to be oral.1
1 Middleton v. Brewer, Peake 15; Petrick v. Ashcroft, 20 N. J. Eq. 198; Vaupell v. Woodward, 2 Sandf. (N. Y.) Ch. 143; Talbot v. Bowen, 1 A. K. Marsh. (Ky.) 436; Adams v. Patrick, 30 Vt. 516; Huffman v. Ackley, 34 Mo. 277; Trayer v. Reeder, 45 Iowa, 272; Montgomery v. Edwards, 46 Vt. 151; Newton v. Swazey, 8N. H. 9; Lingan v. Henderson, 1 Bland (Md.) Ch. 236; Harrison v. Harrison, 1 Md. Ch. Dec. 331; Burke v. Haley, 2 Gilm. (111.) 614; Guynn v. McCauley, 32 Ark. 97; Thornton v. Vaughan, 2 Scam. (111.) 218; Lawrence v. Chase, 54 Me. 196; Rigby v Norwood, 34 Ala. 129; Lear v. Chouteau, 23 111. 39; Boston v. Nichols, 47 111. 353; Milledgeville Laundry Co. v. Gobert, 89 Ga. 473; Iverson v. Cirkel, 57 N. W. Rep. (Minn.) 800; Hamill v. Hall, 35 Pac. Rep. (Col.) 927; Feeney v. Howard, 79 Cal. 525; Lauer v. Richmond Institution, 8 Utah 305; Kraft v. Greathouse, 1 Idaho 254; Browning v. Berry, 107 N. C. 231; League v. Davis, 53 Texas 9; Fleming v. Holt, 12 W. Va. 143; Penninger v. Reilley, 44 Mo. App. 255; Hackworth v. Zeitinger, 48 Mo. App. 32; Loughran v. Giles, 110 N. C. 423; Harner v. Sidway, 124 N. Y. 538; Hobart v. Murray, 54 Mo. App. 249; Neagle v. Kelly, 146 111. 460: Crane v. Powell, 139 N. Y. 379; Hunt v. Johnson et al.. 96 Ala. 130; Benjamin v. Mattler et al., 3 Col. Ct. of App. 227; Donaldson v. Newman, 9 Mo. App. 235; Scharff v. Klein, 29 Mo. App. 549: McClure v. Otrich, 118 111. 320; Porter v. Wormser, 94 N. Y. 431; Wells v. Monihan, 129 N. Y. 161; Reed v. McConnell, 62 Hun (N. Y.) 153; Douglass v. Snow, 77 Me. 91; Howe v. Chesley, 56 Vt. 727; Battell p. Matot, 58 Vt. 271; Scofield v. Stoddard. 58 Vt. 290; Ritch v. Thornton, 65 Ala. 309; Clark v. Taylor, 68 Ala. 453; Bailey v. Irwin, 72 Ala. 505. But it is held otherwise in North Carolina. Morrison p. Baker. 81 N. C 76; Holler v. Richards, 102 N. C 545; Browning v. Berry, 107 N. C. 231. And see Suman v. Springate, 67 Ind. 115; Gordon v. Reynolds, 114 111. 118.
2 Hunter v. Randall, 62 Me. 423; Boston Duck Co. v. Dewey. 6 Gray (Mass.) 446; Durant v. Rogers, 71 111. 121. See Alger v. Johnson. 4 Hun (N. Y.) 412; Harris v. Frank, 81 Cal. 280; Lynch v. Scroth, 50 111. App. Ct. 6C8.
§ 510. Much of the confusion among the earlier authorities upon this matter of allowing the defence of the statute to be taken by demurrer, would seem to have grown out of the doctrine, which at one time received some countenance, that if the defendant admitted the fact of the agreement as charged (which is the effect of a demurrer to the bill or declaration), the agreement must be enforced, notwithstanding the statute was insisted upon in bar of the relief. This doctrine no longer prevails; the defendant's reliance upon the statute, as is now well settled, depriving the plaintiff of the benefit of the admission.2 The question has also been further complicated by the failure of courts to distinguish between cases for the enforcement of contracts on common-law grounds, and those in which the interference of equity is sought upon the equitable ground of fraud. In this latter case, as has already been pointed out, the very ground of the suit is afforded by the power of a court of equity to decline to apply the provisions of the statute upon proof of certain equitable circumstances. A demurrer to such a bill evidently raises the question of the sufficiency of the case shown, the application and force of the statute being practically recognized by the very nature of the relief sought.1
1 Randall v. Howard, 2 Black (U. S.) 585; Lawrence v. Chase, 54 Me. 196. And see Richards v. Richards, 9 Gray (Mass.) 313; Sanborn v. Chamberlin, 101 Mass. 417; Thomas v. Hammond, 47 Tex. 42. Were the question to be considered as an open one, quaere whether, at common law, and upon a strict application of the principle that the statute has made no alteration in the rules of pleading, a declaration may not be good which alleges, according to the fact, that the contract was oral, saying nothing as to whether or not it was followed by any of those authentications of the oral contract for which the statute provides. See Kibby v. Chitwood, 4 T. B. Mon. (Ky.) 91; Price v. Weaver, 13 Gray (Mass.) 272; Boiling v. Munchus, 65 Ala. 558; Phillips v. Adams, 70 Ala. 373; Manning v. Pippen, 86 Ala. 357; Ducie v. Ford, 8 Montana, 233; Campbell v. Brown, 129 Mass. 23; Cloud v. Greasley, 125 111. 313; White v. Levy, 93 Ala. 484; Barr v. O'Donnell, 76 Cal. 469; Roth v. Goerger, 118 Mo. 556; Burden v. Knight, 82 Iowa 584; Speyer v. Dosjardins, 144 111. 641; Clanton v. Scruggs, 95 Ala. 279; Piedmont Land & Imp. Co. v. Piedmont F. & M. Co., 96 Ala. 389; Howard v. Brower, 37 Ohio St 402; Beadle v. Seat, 15 So. Rep. (Ala.) 243.
2 § 515, post.
§ 510 a. Where the bill alleges only an oral agreement, and the answer denies it, it has been held that this excludes oral proof of the agreement in issue.2