The defendants could waive their immunity under the statute of frauds, and unless the defense was in some way set up, or called to its attention, the court was not required to interpose it. (Brown on Stats. of Frauds, sec. 508, and refs.; 1 Dan. Ch. Pr., 4th Am. ed., pp. 656, 657; Burke v. Haley, 2 Gill., (Ill.,) 614; Gillespie v. Battle, 15 Ala., 276; Cozine v. Graham, 2 Paige, 181; Crutchfield v. Donathon, 49 Tex., 696.)
The record fails to show that the statute of frauds was invoked as a defense on the trial, either by pleading it, by objecting to the admissibility of evidence, by asking instructions, or otherwise. In this state of the record, the defendants cannot complain that the court did not give them the benefit of an immunity which they do not appear to have claimed in time. If the court, of its own motion, gave an erroneous charge based on the statute, the defendants were not injured thereby, and cannot complain.
Having denied the contract sued on, the defendants might have objected to its establishment by evidence insufficient under the statute; but as it does not appear that the objection was in any way made until after the trial, it must be presumed, in support of the judgment, that no right under the statute was asserted.
The judgment is affirmed.
Affirmed.
[Opinion delivered March 5, 1880.]