Opinion by
Mr. Justice Green,Against the plaintiff’s claim the affidavit of defense alleges an agreement by the plaintiff with the defendants to take as part payment a certain house and lot described in the affidavit. The affidavit further alleges the preparation and tender of a deed for the premises in part payment of the plaintiff’s claim. There is no averment as to the character of the agreement, whether in writing or verbal, but it is specifically alleged that *51the plaintiff positively agreed to accept the property in part payment. We cannot know whether the agreement was in writing or in parol, but in order to exclude it from the consideration of the jury we would be bound to infer that it was a verbal agreement, and that there were no circumstances which could or might suffice to take it out of the operation of the statute of frauds. We are not at liberty to make either inference for the purposes of the present contention. The affidavit alleges an agreement, and a subsequent performance of the agreement on the part of the defendants. We cannot assume that the defendants allege an illegal agreement. The proper inference from the bare averment must be that it was a valid agreement, especially as it is followed by an allegation of performance of its terms by the defendants. Of course we cannot consider the merits of the case at this stage, nor can we consider any particular offer of evidence in connection with this subject, as nothing of that kind is, or can be, before us now. It is enough to know that the affidavit alleges matters of fact which we must presume to be true in the proper legal sense. As the making of an agreement is a matter of fact, it must be determined by a jury. We decide no question now except that the affidavit contains enough on its face to carry the case to the jury. Especially we do not decide any question of evidence, or of the sufficiency of evidence which may be offered on the trial. All such questions must be determined when they arise and upon all the aspects which they may present.
Judgment affirmed.