Salomon v. McRae

• Decision Date: 14 December 1896
• Citation: 9 Colo.App. 23,47 P. 409
• Parties: SALOMON v. McRAE.
• Court: Colorado Court of Appeals

47 P. 409

9 Colo.App. 23

SALOMON v. McRAE.

Court of Appeals of Colorado

December 14, 1896

Error to district court, Arapahoe county.

Action by Duncan G. McRae against Hiram Z. Salomon. Judgment for plaintiff. Defendant brings error. Affirmed.

Wells Taylor & Taylor, for plaintiff in error.

James B. Belford and T.J. Galloway, for defendant in error.

BISSELL J.

McRae the defendant in error, sued Salomon on a contract of employment, under which he was entitled to receive a stipulated wage, and averred performance. On the termination of the contract, Salomon refused to pay him some $292.64, for which he brought this suit. The contract and its terms were admitted. By way of defense and counterclaim, the defendant set up representations alleged to have been made by McRae respecting the extent of his acquaintance and the trade which he could control, and the making of an agreement between the parties whereby McRae agreed that, if he was permitted to sell goods to divers persons on credit he was to guaranty the accounts, and become responsible for all bills which were contracted under that arrangement. The defendant alleged the sale of a very considerable quantity of goods on the faith and strength of this guaranty, and the execution of a memorandum in writing averred to be sufficient to take it out of the statute of frauds. The amount of money thus due Salomon for unpaid bills under this arrangement, according to his allegations, was some $730, for which he demanded judgment. The replication denied the guaranty or agreement to pay the accounts as stated. On the trial the plaintiff offered testimony which sustained his cause of action. Thereupon the defendant, in support of his counterclaim, undertook to offer bills in evidence, against divers persons, on which were written the letters "O.K. McR.," and attempted to prove the custom which prevailed in the trade concerning the construction to be put on those letters, and therefrom deduce a contract which would sufficiently satisfy the statute. The evidence was objected to, and excluded, and the rulings of the court thereon are assigned as error.

The first proposition respects the absence of a plea of the statute in the plaintiff's replication. Counsel attempt to support their contention that the statute of frauds must be pleaded, in order to become available, by reference to a case decided by this court (Hamill v. Hall, 4 Colo.App. 290 35 P. 927), wherein it is said, "The statute was not pleaded, which alone is sufficient answer." The opinion does not support the proposition. According to all the authorities in this state, the defense of the statute of frauds is a matter of evidence, rather than a matter of pleading. The brief sentence contained in the opinion of this court which has been referred to is in no sense opposed to this general doctrine. The opinion was not rested on that proposition, nor was the judgment based on it, though, as a legal proposition, the statement is entirely accurate, as applied to the particular facts of that case. According to the complaint in that suit, the contract was between the plaintiff and the defendant; and, as it was alleged the plaintiff was personally responsible for the goods sold and the work done, the defendant occupied no such relation to the matter in controversy as that of a guarantor, or a person who had promised to answer for the debt or default of another. In the answer which Hamill interposed, the agreement and the performance were substantially admitted, although it was stated generally that the work was done and the supplies furnished to persons other than the defendant Hamill. Under these circumstances, if Hamill desired to avail himself of the statute it was incumbent on him, if he admitted the agreement, to plead its invalidity, and rely on the statutory defense. This has always been the practice in equity, where the plaintiff relied on an agreement within the statute which was admitted by the defendant. To avail himself of the statute, the defendant was bound to plead it. In analogy to this rule of equity pleading and practice, it is undoubtedly true, under the Code, that if the plaintiff sets up an agreement which is within the...