Lammers v. McGeehan , 43 Mo. App. 664 ( 1891 )

Ellison, J.

Plaintiff is a tailor. The defendant ordered an overcoat of him, leaving his measure and directions as to- material, style and finish of the coat. Plaintiff did not make coats for general sale, but only in cases where he was specially employed by an individual customer to make for him according to the special order of the employer as to the material, style, finish and price. The coat was made according to order, and defendant refused to take or pay for it. The cause was submitted on an agreed statement of facts, and the circuit court found for the plaintiff, and defendant appeals. There was no bill of exceptions in the cause, and it is brought here on writ of error. It is disclosed by thé agreed statement of facts that no money was paid on the contract, and no writing was signed by either party. 'The sole defense is the statute of frauds.

Under the law of this state, as evidenced by repeated adjudications, the statute of frauds is an affirmative defense which must be interposed by the party claiming its benefit. That while a general denial will be considered a sufficient plea to permit the claim of the statute to be made on the trial, yet such claim must be made. As the statute can unquestionably be waived, there must appear something to show that the party seeking its protection has asserted the right at the trial. This is done by an objection to the oral testimony which may be offered as proof of the contract. Allen v. Richard, 83 Mo. 55.

It is, however, insisted here that the record shows the claim was made in the lower court, since the agreed statement of facts, which, it is asserted, is a part of the record, so shows. Conceding, but not deciding, that the agreed statement of facts, standing as a special verdict is a part of the record, the question is, does it show the statute was interposed % We think not; it, at most, would amount to no more than that a jury had found that a verbal contract was made from evidence submitted. It shows no objection to -the consideration of such facts. We must conclude that no such objection was made, as none appears to have been interposed. The case of Scharff v. Kleen, 29 Mo. App. 549, was in all respects like this, except there was no agreed statement of facts, and the St. Louis Court of Appeals, in a very clear opinion by Rombaueb, J., held that, while the general issue would be considered tendered as though pleaded, since the cause originated before a justice of the "peace, yet the attention of the trial court should be distinctly called in some manner to the fact that the statute is relied upon as a defense; and that this could not be done by instruction, after proof of the oral contract had been made without objection.

It may be as well to state, since the question was argued by counsel, that this .court, in the case of Pratt, Warner & Co. v. Heberling, decided, in an opinion by Grim, J., October term, 1889, that the statute did not apply to a case of this kind, thereby ruling the point against the view of the appellant here ; and that we certified the cause to the supreme court as being contrary to Burrell v. Highleyman, 33 Mo. App. 183.

The judgment is affirmed.

All concur.