There are two reasons to sustain the plaintiff’s contention that the court erred in granting a judgment on the pleadings.
1. In the first place the plaintiff, we think, had a right to rely upon her cause of action for a breach of the contract, as alleged in the complaint. There is no- direct allegation of fraud, and while fraud or mistake may have been incidental to the substitution alleged — if there was a substitution — -yet if there was also a breach of contract, or failure to carry out the contract, the plaintiff under well-settled doctrine had a right to rely upon the breach and ignore the fraud.
2, 3. It is true that a contract of this kind in relation to the sale of real estate might, perhaps, be void under Section 108, subdivision 6, L. O. L., unless the same was in writing: Hood v. Seachrest, 89 Or. 457 (174 Pac. 734). But in any event this section cannot be taken advantage of upon a motion for judgment on the pleadings, where it does not appear from the complaint or answer whether the contract relied *482upon by plaintiff was' oral or in writing. Even if this fact appeared in the answer it would bave to be admitted by the plaintiff before it could justify such a judgment.
In 20 Cyc. 308, it is said:
“A declaration or complaint on a contract, which •is required by the statute of frauds to be in writing, need not contain an allegation that it is in writing. There is a'presumption to that effect which will save the declaration on demurrer.”
This is the general rule, and is the rule established in this state: Hedges v. Strang, 3 Or. 18; Southwell v. Beezley, 5 Or. 143; Albee v. Albee, 3 Or. 321.
It may be that the contract in this case will turn out to be only an oral contract, and in that event the plaintiff might possibly be embarrassed under her present pleadings. But, as we have said before, the court could not pass upon this question in a drastic way by judgment on the pleadings, unless the fact that the contract was oral admittedly appeared therefrom, which is not so in this case.
The judgment of the court below must be reversed and the cause remanded for further proceedings.
Reversed and Remanded.
McBride, C. J., and Harris and Johns, JJ., concur.