Benton v. Schulte

• Court: Minnesota Supreme Court
• Writing for the Court: Mitchell, J.
• Citation: Benton v. Schulte, 31 Minn. 312, 17 N. W. 621 (Minn. 1883)
• Decision Date: 15 December 1883
• Parties: C. Henry Benton v. John Schulte and Wife

17 N.W. 621

31 Minn. 312

C. Henry Benton v. John Schulte and Wife

Supreme Court of Minnesota

December 15, 1883

Appeal by plaintiff from an order of the district court for Hennepin county, Lochren, J., presiding, sustaining a demurrer to the complaint.

Order reversed.

F. A Merrill, for appellant.

Ueland Shores & Holt, for respondents.

OPINION

Mitchell, J.

This was an action to compel specific performance of a contract for the assignment of a lease of real estate for a term of years. Such a contract is clearly within the statute of frauds. Gen. St. 1878, c. 41, tit. 2, § 12. Briles v. Pace, 13 Ired. Law 279. But it was not necessary to allege that it was in writing. The statute of frauds has not changed the rules of pleading. The writing is a matter of proof and not of allegation. In declaring on a contract which, though oral only, would have been valid at common law, it is sufficient to allege a contract generally, without stating whether it is in writing or not. Browne, Stat. of Frauds, § 505; Walsh v. Kattenburgh, 8 Minn. 99, (127.) Therefore the complaint in this case, in the first instance, sufficiently pleads the contract. But, after so doing, the pleader unnecessarily adds "that a memorandum of said contract was made in writing; that in said memorandum the consideration of the agreements and promises of defendants to be paid and performed by plaintiff was expressed, and said memorandum was then and there duly signed on behalf of defendants by Hamlin & Brown, who were then the duly-authorized agents of defendants to make said contract and sign said memorandum for defendants." It is claimed that although the former part of the pleading, if standing alone, sufficiently alleged the contract, yet what is here quoted so limited and qualified it as to affirmatively show that no sufficient memorandum was made in writing to fulfil the requirements of the statute. We do not so view it. It does not assume to state what the memorandum contained except that it expressed the consideration and was signed by the duly-authorized agents of the party sought to be charged. It is just as if the pleader had, in the previous part of the complaint, in alleging the contract generally, added parenthetically, "of which contract a memorandum was made in writing, expressing the consideration, and signed by the duly-authorized agents of the defendants." There is nothing in this negativing the idea that this...