John Taplin v. Hinckley Fibre Co.

• Decision Date: 03 October 1923
• Citation: 122 A. 426,97 Vt. 184
• Parties: JOHN TAPLIN v. HINCKLEY FIBRE COMPANY
• Court: Vermont Supreme Court

122 A. 426

97 Vt. 184

JOHN TAPLIN v. HINCKLEY FIBRE COMPANY

Supreme Court of Vermont

October 3, 1923

May Term, 1923.

ACTION OF CONTRACT. Plea, the general issue, and an amendment filed during trial pleading the Statute of Frauds. Trial by jury at the October Term, 1922, Essex County, Willcox, J., presiding. Verdict ordered for the defendant and judgment thereon. The plaintiff excepted. The opinion states the case.

Reversed and remanded.

C R. Powell and Searles & Graves for the plaintiff.

Amey & Cameron for the defendant.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

BUTLER

The action is contract. The declaration contained the common counts and a special count predicated on the breach of an express contract between the parties for the labor by plaintiff with his team, made March 20, 1921, which contract was to commence April 1 following and to continue for one year. He commenced work about April 1 and continued at work under the contract until June 25, when he was discharged.

The declaration contains no allegation that the contract was in writing, and plaintiff's evidence showed, and he now admits, that such was not the fact. The plaintiff testified fully as to the terms of the contract and the claimed breach without objection. On cross-examination by defendant he stated that he did have a written contract with the defendant in respect to a wagon which he purchased of defendant some time previous to his discharge and gave his note therefor with a lien on the wagon which was in writing, signed by the plaintiff, therein stipulating that it was to be paid "by work of man and team during the coming winter of 1921 and 1922," by April 1, 1922, on the back of which appeared the following memorandum "Mr. Harry Kitridge Mr. John Taplin has fixed up everything satisfactory with the Hinckley Fibre Co. and you can pay him for the wagon," signed by Applebee, superintendent. This note was in the hands of defendant, and was offered and received in evidence as defendant's exhibit. At the close of plaintiff's testimony defendant moved for a directed verdict on the ground that the evidence showed that the contract proved was within the Statute of Frauds. The motion being overruled, defendant asked and had leave to file an amended answer setting up the Statute of Frauds, to which ruling plaintiff excepted. The motion was then renewed and granted, and the court directed a verdict and rendered judgment thereon for the defendant, to all of which plaintiff excepted, on the ground, first, that the contract having been fully established by parol evidence without objection the defense of Statute of Frauds was waived; and, second, having been waived, it was error to permit the filing of an amended answer and to direct a verdict and enter judgment for defendant thereon.

The clause of the statute here in question does not make oral contracts illegal or void and unenforceable if allowed to be proved by testimony not in writing. It affects the rules of evidence and not those of pleading. It does not interfere with the substance of the contract, but throws a difficulty in the way of evidence. Cooley v. Hatch, 91 Vt. 128, 99 A. 784; Smith v. Smith, 14 Vt. 440; Strong v. Dodds, 47 Vt. 348; Pike v. Pike, 69 Vt. 535, 38 A. 265.

As a rule of evidence it may be waived and is waived, unless objection is made to the proof offered, so that the proof of a contract by parol evidence without objection is a waiver of the protection of the statute. To invoke the statute as a defense after the admission of evidence without objection, establishing the agreement, is quite too late to be available. Holt v. Howard, 77 Vt. 49, 58 A. 797; McDonald v. Place, 88 Vt. 80, 90 A. 948; Sartwell v. Sowles, 72 Vt. 270, 48 A. 11, 82 A. S. R. 943; Montgomery v. Edwards, 46 Vt. 151, 14 A. S. R. 618.

The Statute of Frauds may be availed of by seasonable objection to the evidence, without its being specially pleaded. Pocket v. Almon et ux., 90 Vt. 10, 96 A. 421; Cowles v. Cowles' Estate, 81 Vt. 498, 71 A. 191; Dee v. King, 77 Vt. 230, 59 A. 839, 68 L. R. A. 860; Paine v. McDowell, 71 Vt. 28, 41 A. 1042.

The special count appraised the defendant of the contract on which the plaintiff's claim was based, so that, if he wished to...