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.
§ 511. In the next place, a defendant may insist upon the benefit of the statute by plea of the general issue, or in equity by answer simply, denying the fact of the agreement which the plaintiff charges to have been made. This puts the plaintiff to proof of the agreement at the trial or hearing, and he then must produce a writing.3 Where, however, the bill, in addition to the allegation in general terms that the agreement was made, alleges such acts done in part execution of it, or such other equitable circumstances, as would justify the court in enforcing it, the defendant cannot by this method avail himself of his defence upon the statute, but must directly traverse the allegation of equitable circumstances, at the same time that he pleads, or by answer insists upon, the statute as preventing the plaintiff's recovery on the mere verbal agreement.1 And this brings us to the most important class of cases upon the subject of the present chapter.
1 See § 507, supra.
2 Mahana v. Blunt, 20 Iowa 142; Askew v. Poyas, 2 Desaus. (S. C.) Ch. 145; Alien v. Chambers, 4 Ired. (N C.) Eq. 125; Duun v. Moore, 3 Ired. (N. C.) Eq. 364.
3 Buttemere v. Hayes, 5 Mees. & W. 456; Johnson v. Dodgson, 2 Mees. & W. 653; Elliott v. Thomas, 3 Mees. & W. 170; Eastwood v. Kenyon, 11 Ad. & E. 438; Leaf v. Tuton, 10 Mees. & W. 393; Reade v. Lamb, 6 Exch. 130; and in equity, Skinner v. McDouall, 2 De G. & S. 265; Clifford v. Turrell, 1 Younge & C. 138; Cozine v. Graham, 2 Paige (N. Y.) 181; Ontario Bank v. Root, 3 Paige (N. Y.) 478; Small v. Owings, 1 Md. Ch. Dec. 363; Chicago & Wilmington Coal Co. v. Liddell, 69 111. 639; Wynn v. Garland, 19 Ark. 23; Trapnall v. Brown, 19 Ark. 39; Myers v. Morse, 15 Johns. (N. Y.) 425; Givens v. Calder, 2 Desaus. (S. C.) Ch. 171; Kay v. Curd, 6 B. Mon. (Ky.) 100: Fowler v. Lewis, 3 A. K. Marsh. (Ky.) 413. But see Maggs v. Ames, 4 Bing. 470; Barnett v. Glossop, 1 Bing. N. R. 633. The new rules of pleading under the Supreme Court of Judicature Act, make it necessary to plead the statute specially. See Rule XIX. par. 23, sched. 1, of the amended Act. And see Middlesex Co. v. Osgood, 4 Gray (Mass ) 447, and Mass. Gen. St. c. 129, § 20; May v. Sloan, 101 U. S. 231; Dunphy p. Ryan, 116 U. S. 491; Allen v. Richard, 83 Mo. 55; Wiswell v. Tefft, 5 Kans. 156; Tatge v. Tatge, 34 Minn. 272; Busick v. Van Ness, 44 N. J. Eq. 82; May v. Sloan, 101 U. S. 231; Bernhardt v. Walls, 29 Mo. App. 206; Feeney v. Howard, 79 Cal. 525 But see Smith v Pritchett, 98 Ala. 649; Citty v. Southern Queen Mfg. Co., 24 S. W. Rep. (Tenn.) 121.
§ 512. A defendant may, by special plea or by answer, expressly interpose the statute in bar of the plaintiff's claim. Under this head, several questions arise: first, when the statute may be specially pleaded or insisted upon; secondly, the proper form of the plea or answer in order to present the defence upon the statute; thirdly, the extent of the defence thus presented.
§ 513. We have already seen that it is open to the defendant to demur where the plaintiff expressly states that the agreement rests in parol. Where he does not by his allegations disclose whether it is in writing or not, the defendant may deny that it is in writing and insist upon the statute by his plea or answer.
§ 514. And in equity, although, as the general averment of an agreement in the bill may be understood to mean an agreement in writing, the plea of the statute has rather the appearance of an answer, it has always been allowed in that form. But if the bill states an agreement in writing and seeks nothing but an execution of that agreement, a plea that there is no agreement in writing has been considered improper, being no more than so much of an answer.2
§ 515. It was formerly held that if the defendant, by his answer in chancery, admitted the fact of the agreement, he could not avail himself of the benefit of the statute. Lord Macclesfield so decided,1 and Lord Hardwicke, if he did not actually determine the point,2 clearly appears to have been of the same opinion.3 But by the unbroken course of more modern decisions, it is now settled that although the defendant admit the agreement, it cannot be enforced without the production of a written memorandum, if he insist upon the bar of the statute.4 As was said by Sir William Grant, "It is immaterial, what admissions are made by a defendant insisting upon the benefit of the statute; for he throws it upon the plaintiff to show a complete written agreement; and it can no more be thrown upon the defendant to supply defects in the agreement than to supply the want of an agreement." 5 The American courts have also fully accepted this doctrine.6 It is hardly necessary to say that the defendant is not debarred from thus insisting upon the statute, by the bill's alleging that the agreement has been in part performed; for the part-performance can have no other effect than to let in the plaintiff to prove the contract aliunde where it is not confessed.1
1 Post. § 518.
2 Per Lord Eldon, in Morison v. Tumour, 18 Ves. 175. And see Story, Eq. Pl. § 762, note.
1 Child v. Godolphin, 1 Dick. 39; s. c. cited 2 Bro. C. C. 566; Child v. Comber, 3 Swanst. 423, note.
2 Cottington v. Fletcher, 2 Atk. 155. It is to this case that Lord Loughborough seems to refer when he says (Moore v. Edwards, 4 Ves. 24): " There is a case in Atkyns that misleads people; where Lord Hardwicke is stated to have overruled the defence upon the statute merely on the ground that the agreement was admitted. I had occasion to look into that; and it is completely a misstatement. It appears by Lord Hard-wicke's own notes that it was upon the agreement having been in fact executed that he determined that case."
3 See his dictum in Lacon v. Mertins, 3 Atk. 3.
4 Walters v. Morgan, 2 Cox 369; Whitbread v. Brockhurst, 1 Bro. C. C. 416; Whitchurch v. Bevis, 2 Bro. C. C 559, and Eyre v. Ivison, and Stewart v. Careless, there cited; Rondeau v. Wyatt, 2 H. Bl. 63; Moore v. Edwards, 4 Ves. 23; Cooth v. Jackson, 6 Ves. 37; Rowe v. Teed, 15 Ves. 375; Blagden v. Bradbear, 12 Ves. 466; Kine v. Balfe, 2 Ball & B. 343; Luckett v. Williamson, 37 Mo. 388; Burt v. Wilson, 28 Cal. 632; Taylor v. Allen, 40 Minn. 433. But see Auter v. Miller, 18 Iowa, 405; Dewey v. Life, 60 Iowa 361; Creigh's Administrator v. Boggs, 19 W. Va. 240.