Magee v. Winn, 5892

• Decision Date: 09 December 1932
• Docket Number: 5892
• Citation: 52 Idaho 553,16 P.2d 1062
• Parties: C. F. MAGEE, Appellant, v. INEZ L. WINN, Respondent
• Court: Idaho Supreme Court

16 P.2d 1062

52 Idaho 553

C. F. MAGEE, Appellant, v. INEZ L. WINN, Respondent

No. 5892

Supreme Court of Idaho

December 9, 1932

TRIAL-STATUTE OF FRAUDS-PLEADING-INSTRUCTIONS-APPEAL AND ERROR-RECORD ON APPEAL-ARGUMENT OF COUNSEL-MOTION TO STRIKE.

1. Where complaint expressly pleaded contract outside statute of frauds, and defendant did not plead statute as defense, court improperly instructed on statute (C. S., sec. 7976).

2. Attorney's argument that he believed certain writing was enough to bind defendant held not abandonment of theory of defendant's liability under oral promise.

3. Counsel's argument, included in record on appeal, would not be stricken where appellant was helped rather than harmed by it.

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Gillies D. Hodge, Judge.

Action by C. F. Magee against Inez L. Winn for fees for professional and hospital services rendered Nita Winn. Judgment for defendant. Reversed and remanded.

Judgment and order reversed and new trial granted. Costs to appellant.

J. H Felton, for Appellant.

Where a complaint is sufficient and is generally or specifically denied, the statute of frauds must be specifically pleaded otherwise it is waived. (Bevercombe v. Denney & Co., 40 Idaho 34, 231 P. 427, 428; Kraft v. Greathouse, 1 Idaho 254.)

Instruction No. 2 as given to the jury is contrary to the law. (Mitchell v. Davis, (Mo. App. 1916) 190 S.W. 357.)

Orland & Goff, for Respondent.

The defendant, in an action on a contract pleaded in such form as to take the promise out of the operation of the statute of frauds, is not required to plead the statute if the contract is denied as pleaded. (Buckley v. Zimmerman, 32 Misc. 704, 65 N.Y.S. 512; Thompson v. English, 76 Wash. 23, 135 P. 664; Brauer v. Oceanic Steam Nav. Co., 178 N.Y. 339, 70 N.E. 863; Gottlieb v. Gins, (Sup.) 166 N.Y.S. 1041; 27 C. J. 371, sec. 449.)

All instructions given in a case must be read and considered together as a whole, and where they are not inconsistent but may be reasonably and fairly harmonized, it will be assumed that the jury gave due consideration to the whole instructions rather than to isolated portions thereof. (Hard v. Spokane International Ry. Co., 41 Idaho 285, 238 P. 891; Taylor v. Lytle, 29 Idaho 546, 160 P. 942; Knauf v. Dover Lumber Co., 20 Idaho 773, 120 P. 157.)

LEE, C. J. Budge, Givens, Varian and Leeper, JJ., concur.

OPINION

LEE, C. J.

Plaintiff and appellant, Magee, a physician and surgeon, sued two sisters, Inez and Nita Winn, for professional and hospital fees consequent upon an operation involving Nita Winn. Paragraph 3 of the complaint charged: "That he found the said Nita Winn in a very dangerous condition which necessitated an immediate operation to save her life and that at the solicitation and request of the defendant, Inez L. Winn, he took the said Nita Winn to his hospital in Moscow, Idaho, such hospital being called the Inland Hospital." A general as well as a special demurrer upon the ground of misjoinder having been interposed, leave was given appellant to dismiss without prejudice as to defendant Nita Winn, and to substitute for paragraph 3 the following:

"That he found the said Nita Winn in a very dangerous condition which necessitated an immediate operation to save her life, and that the said defendant, Inez L. Winn solicited the plaintiff to furnish all necessary and proper medical and surgical care and attention, and agreed to pay therefor, and contracted with the plaintiff to perform the same, and at such solicitation and request and upon said promises to pay, he took the said Nita Winn to his hospital in Moscow, Idaho, such hospital being called the Inland Hospital."

It was alleged that the operation was duly performed, followed by successful recovery. Defendant and respondent, Inez Winn, answered, specifically denying all the material allegations of the complaint. Upon the trial, however, all such allegations were admitted with the exception of one, to wit: the plead contract relied on. This is apparent from the statement of respondent's counsel, "The only thing there is any dispute about in this case is whether or not Miss Inez Winn agreed to pay for anything." At the conclusion of plaintiff's evidence, respondent moved for a nonsuit upon the ground that the evidence disclosed a guarantee instead of an original promise and, there being no promise in writing, the agreement was unenforceable under the statute of frauds. The motion was denied, renewed at the close of the case and again denied. Respondent secured verdict and judgment. Appellant moved for a new trial, which was refused, and he is here on appeal from both judgment and order.

Primarily, he objects to certain instructions respecting the statute of frauds, claiming that, since the statute was not specially plead as a defense, any instruction concerning it was erroneous, confusing and misleading the jury. While admitting in her brief that the complaint "alleges a direct, original contract, before the work was done, between the plaintiff and defendant" and that "the legal effect of the complaint is therefore to expressly allege a contract not within the prohibition of the statute," respondent urges that the special defense of the statute was available to her under her "denial of the contract as pleaded." She furthermore contends that, by reason of not objecting to her indicated reliance upon the statute as a defense and arguing to the jury that plaintiff's exhibit "A" was sufficient to bind defendant under the statute, appellant not only waived the error but invited it and adopted respondent's theory, irrespective of the pleadings.

Notwithstanding that the first proposition is supported by much respectable authority, this court in Bevercombe v. Denney & Co., 40 Idaho 34, 39, 231 P. 427, declared unequivocally for the opposite rule in the following, unambiguous announcement:

"It is the general rule, we believe, that where it does not appear from the complaint that the contract sued on falls within the statute of frauds, the party relying on the statute as a defense must allege it in his answer. In other words, the statute of frauds is a defense which may or may not be used, but is not available as a defense unless pleaded."

As heretofore stated, respondent admits that the complaint expressly plead a contract outside the statute.

Now, as to the second proposition. The first suggestion of the statute of frauds was injected into the trial by respondent the theory was her own. Although appellant's counsel in his argument to the jury attempted to counter it by commenting upon the binding nature of plaintiff's...