The great requirement of the Code, in respect to a complaint, is that it shall state facts sufficient to constitute a cause of action. The allegations must be such that the court can see that, if they are admitted or proved, the plaintiff will be entitled to judgment, unless the cause of action is overcome by some new matter of defence.
In this case, it is stated that a contract was made between the plaintiff and Daniel P. Southerland, This contract is the foundation of the action. If there be no such contract there is no cause of action. But it is a contract relating to lands. Such a contract, to be operative, must be in writing and signed by the party to be affected by it: if it be not,'it is, in fact, no contract. The allegation in the complaint is untrue. The defendant has only to deny it. Regarding it, therefore, as a question of pleading, I think when the plaintiff alleges that a contract was made between her and Southerland, by which they were to become jointly interested in the purchase of the lot in question, it is to be understood that it is a real contract, something which the law would recognize and respect as such, and not a thing which the law, in regard to the subject to which it relates, would repudiate as nugatory and void. A deed of land, to be valid, must be subscribed and sealed: it must also be acknowledged, or else its execution and delivery must be attested by a subscribing witness. But I suppose no one ever supposed it was necessary to allege these circumstances in
I am aware that a different view of this question has been taken by the superior court of New York. In Thurman agt. Stevens, (2 Duer, 609,) the action was against the sureties in an undertaking executed upon an appeal from a judgment. The agreement of the defendant was set forth in the complaint, in ■the language of the undertaking, but it was not stated that the undertaking was in writing, and subscribed by the defendant. There was a demurrer to the complaint, on the ground that the agreement set forth was a collateral undertaking to answer for the debt or default of another, and was void by the statute of frauds. The demurrer was sustained, Mr. Justice Emmet holding that the making or existence of a writing subscribed by the party to be charged, was one of the facts necessary to constitute a cause of action, and, of course, must be stated in the complaint. In this opinion Mr. Justice Duer concurred. The case of Leroy agt. Shaw, (2 Duer, 626,) was decided in the same court, about the same time. The case was disposed of upon another ground, but Mr. Justice Bosworth has- taken occasion to speak of the question now under consideration. “ Whether the agreement is in writing or not,” he says, is more than a mere matter of evidence. The making of the
But with great respect for these learned judges, I can but think they have not sufficiently cpnsidered the distinction between. the facts necessary to constitute a cause of action, and the evidence which tends to establish such facts. The law knqws no such thing as an agreement to answer for the debt or default of another, which is not in writing, and signed by the party to be charged. The pleader may be supposed to know that when he alleges an agreement of this description, he alleges what has no legal existence, if it be not in writing. In the sense in which I am now considering the question, the fact itself does not exist if there be no written proof of it. When, therefore, as in this case, the pleader alleges the existence of an agreement which would be void if not in writing, it should be treated in pleading like any other fact, and assumed to be true, unless controverted by the adverse party. If, after this issue shall be disposed of, the defendant shall see fit to put in issue the existence of the agreement stated in the complaint, the plaintiff will of course fail upon the trial of that issue, unless she can prove her allegation by producing written evidence of the agreement. She will fail, not for the want of sufficient allegations to sustain her action, but for the want of sufficient evidence to sustain such allegations.
But the learned judge who decided this case at the special term, put his decision upon the ground, not that it was necessary that it should affirmatively appear in the complaint that the agreement was in writing, but that it did in fact appear that it was not in writing. In this conclusion I cannot concur. It •is very likely, indeed, that there was no written agreement between the parties. I am not without suspicion that it will so turn out when the facts shall appear in evidence. But upon a question of the sufficiency of a pleading, such conjectures or inferences have no place. There is not lung in the complaint at all inconsistent with the theory that an agreement was en