The principal question is whether the contract for the sheep was within the statute of frauds. (2 R. 13. 136, § 3.) That section declares that “ every contract for the sale of any goods, chattels or things in action, for the price of 50 dollars or more, shall be void, unless 1. A note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby; or 2. Unless the buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action; or, 3. Unless the buyer shall, at the time, pay some part of the purchase money.”
It is contended that we are to assume that a note or memorandum of the contract was made in writing and subscribed by the defendant, because it was not affirmatively proved that it was not done. I do not understand the rule thus. The true rule is laid down with great distinctness in Coles v. Bowne, (10 Paige, 526.) 11 where the complainant, in his bill, sets up an agreement which, by the statute of frauds, would be invalid unless it was in writing, and subscribed according to the provisions of the statute, the legal presumption is that it was in writing, unless the contrary is stated in the bill. And if the agreement, as stated in the bill, is denied by the answer of the *452defendant, the complainant must produce legal evidence of the existence of such an agreement, upon the hearing; which can only be done by producing a written agreement duly executed according to the provisions of the statute.” This is precisely the rule of pleading on this subject in courts of law. The importance of preserving consistency in legal principles, and especially where their assimilation is perfect in law and. equity, is inculcated in every provision establishing the present judiciary, and regulating proceedings before it. The plaintiff in this case states the agreement generally. That was all he was bound to do. The court would presume it was a legal contract. If the defendant had not denied it by a plea of the general issue, no proof of the contract would have been required; and the presumption that it was a legal contract would still attach. As the defendant did so deny it, it was incumbent on the plaintiff to produce legal evidence of the contract. The evidence furnishes no ground for presuming that it was in writing.
Did the buyer at the time pay some part of the purchase money 1 Nothing but words passed between the parties at the time. The amount of the accounts was to be ascertained and liquidated. The purchase was of a flock of sheep supposed to be 72, and 10 or 12 were reserved by the defendant. The proposition to deduct the accounts from the aggregate value of the sheep when ascertained, came from the defendant, and obviously in their connection with what passed on the subject of payment for the sheep, to encourage the plaintiff to agree to pay on the 1st of December. The plaintiff said it was no object for him to buy the sheep for the account. At most, it was an agreement that upon the delivery of the sheep the defendant would take the plaintiff’s note for their value at ten shillings per head, less the accounts spoken of, to be ascertained and deducted. Every thing rested in parol. If the plaintiff’s accounts were cancelled before he tendered them, receipted, it was not at the time of the contract ;^for, as respected one at least, it had not been posted. (Artcher v. Zeh, 5 Hill, 200, 205.)
The court of common pleas may reverse or affirm a judgment of a justice in whole or in part; and it is suggested that they *453should have affirmed this, to the extent of 12-| cents damages and costs. The plaintiff rendered his accounts, and the tender was made upon the faith of their correctness. The money tendered was in court, and the amount known to the party. If he had ingenuously called the defendant’s attention to the deficiency, and the occasion of it, the amount would in all probability have been added to the tender. The 12-^ cents was in no sense the matter in controversy, and I think the court exercised their discretion justly and discreetly in reversing the judgment in whole.
Judgment of the common pleas affirmed.