Swetland v. Barret

• Decision Date: 16 January 1882
• Citation: 4 Mont. 217
• Parties: WELLINGTON W. SWETLAND v. ANTHONY H. BARRET.
• Court: Montana Supreme Court

4 Mont. 217

WELLINGTON W. SWETLAND

v.ANTHONY H. BARRET.

Supreme Court of the Territory of Montana.

Filed January 16, 1882.

Where a pleading alleges an agreement which would be within the statute of frauds, unless in writing, it will be presumed to be a written contract, and, if denied, such a one must be proved. The writing is a matter of proof and not of allegation.

From Second district, Deer Lodge county.

Chumasero & Chadwick, for appellant.

Toole & Robinson, for respondent.

WADE, C. J.

This is an action upon a promissory note given by A. H. Barret, the respondent, to one Thomas Hooper or order, for the sum of $1,260.93, payable one day after date, and by the payee assigned to Wellington W. Swetland, the appellant. The answer alleges that in October, 1876, it being understood that Hooper, the payee of the note, would sell the same for $100, the appellant and respondent entered into an agreement, by the terms of which the appellant promised and agreed to advance for the respondent the sum of $100, and purchase the note for said sum, in consideration of which the respondent promised and agreed to repay to the appellant the said sum of $100, together with interest thereon at the rate of 2 per cent. per month from date until paid; that under and by virtue of said contract and agreement the appellant did advance the sum of $100, and did then lay out and expend that sum in purchasing said note from Hooper, which purchase was made for the sole use and benefit of the respondent, which sum, together with interest thereon at the rate named, is due and owing to appellant; that by the further terms of said contract the appellant was to retain the note until the respondent had paid said sum of $100, together with interest as aforesaid. There was a demurrer to the answer for the reason that the same did not state a defense to the action, and also a motion to strike out the same for the same reason, which demurrer and motion were overruled.

The position of appellant is this: That as it is not averred in the answer that the contract set forth therein was in writing, therefore that the court will infer that the same was a parol agreement, and that, as there was no time fixed for the repayment of the $100 by the terms of the agreement, and that the respondent fixed the date of such payment by his offer to pay the same, and to comply with the terms of the contract, by tendering the money in September, 1880, four years after the contract was made,...