I concur in the reversal of this judgment because I think that the defendant had the 'right tó plead the Statute of Frauds and that it would be a good defense to an action based upon a verbal contract, unless the plaintiff could prove that the contract had been so performed on his part as would make it a fraud for the defendant to be permitted to escape performance on his part. The complaint simply alleges the making of the contract and does not allege whether it was oral or in writing. The complaint also alleges facts . which the plaintiff claims show performance of the contrabt on his part. As the Statute of Frauds to be available as a defense must be pleaded if the defendant did not plead'it and the plaintiff'established the making of a verbal contract he would then be entitled to enforce it although he failed to prove performance. The allegations of performance oh the plaintiff’s part are not strictly speaking a part of his cause of action, but an allegation of facts to take .the case out of the Statute of Frauds so as to enable him to recover without .proof of a written contract. The cause of action was upon his alleged contract and it seems to me that it is always proper for a defendant to allege as an answer that a contract sued on was not in writing .'and, therefore, void by the statute, and if that fact is proved the question is then presented as to whether performance by the plaintiff or any other fact is sufficient to take the case out of the Statute of Frauds and justify a,recovery notwithstanding the failure to comply with the provisions of that statute. Any other rule would subject a defendant to the danger of being deprived of the benefit of the statute by the plaintiff’s merely inserting in his complaint facts which would tend to show that the case was not. within the statute and then enable him to recover on the promise without proof of those facts.
I, therefore, concur in the reversal of this judgment.
Judgment reversed, with costs, and demurrer overruled, with costs, with leave to plaintiff to withdraw demurrer on payment of costs.