Whitehead v. Burgess
| Decision Date | 08 November 1897 |
| Citation | 38 A. 802,61 N.J.L. 75 |
| Parties | WHITEHEAD v. BURGESS. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Action by Edward Whitehead against William W. Burgess on a contract. Heard on demurrer to declaration. Demurrer overruled.
Argued June term, 1897, before the CHIEF JUSTICE, and DEPUE, VAN SYCKEL, and GUMMERE, JJ.
Howard McSherry and Theodore B. Booraem, for plaintiff.
Paul A. Queen, for defendant.
VAN SYCKEL, J. The first count of the declaration sets out that the defendant, being the owner of a stallion known as "Lynne Bel," published a certain circular, in which he offered the services of the said stallion for the sum of $100, and therein promised to pay the owner of the first one of the foals of said stallion that should trot a mile in 2 minutes and 30 seconds, or less, the sum of $750. The declaration further sets out that one Pursell, being the owner of a mare called "Eva," bred the said mare to said stallion, and paid the said defendant the sum of $100 for the privilege of so doing; that the said defendant, in consideration of such payment, promised the said Pursell to pay the owner of the foal of the said mare the sum of $750 if such foal should prove to be the first one of the get of said stallion that should trot a mile in 2 minutes and 30 seconds; that the plaintiff, having knowledge of the said promise made to said Pursell, did purchase the foal of the said mare Eva by the said stallion, and while the said foal was owned by the plaintiff the said foal trotted a mile in less than 2 minutes and 30 seconds, and was the first one of the get of said stallion to make the said time. The second count is substantially like the first count, except that it avers that at the time the service money was paid the defendant repeated to said Pursell the promise and undertaking in said circular set forth. A separate demurrer is filed to each count of the declaration.
The first ground of demurrer relied upon by the defendant is that the contract is within the statute of frauds, and must be in writing, and that it must appear affirmatively in the declaration that the contract was in writing, and signed by the party to be charged. In this contention the defendant's counsel has misconceived the rule of pleading. Where an action is founded upon a contract which at common law is valid without writing, but which the statute requires to be in writing, the declaration need not count upon, or take notice of, the writing. If an action is brought upon a promise to pay the debt of another, the declaration need not aver that the promise is in writing, even if such be the fact. The reason is that the statute of frauds merely introduces a new rule of evidence, but does not alter or affect the rule of pleading. As long ago as the time of Lord Holt that was declared to be the rule. 2 Salk. 519....
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... ... 412 ... Appellant ... also cites many decisions from other jurisdictions, [60 Utah ... 451] among which are the following: Whitehead v ... Burgess , 61 N.J.L. 75, 38 A. 802; Tweeddale ... v. Tweedale , 116 Wis. 517, 93 N.W. 440, 61 L. R. A ... 509, 96 Am. St. Rep. 1003; ... ...
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