Taylor v. T. Patterson & Co. ( 1873 )

By the Court,

Bonham, J.:

Iu this ease it was argued, by counsel for appellants, that inasmuch as the complaint does not charge that there was a contract in writing between plaintiff and defendants for the payment of gold coin, the court erred in rendering judgment for gold coin, non obstante verdicto. Respondent’s counsel argued that, by a fair construction of his pleading, in setting forth the count for services as editor of the “Herald” at $50 per week, it is averred that the contract for such service and compensation was in writing; but, that if the court should hold that such contract is not alleged to have been in writing, it would be immaterial, as such omission would not be fatal to plaintiff’s right to recover gold coin. That, to recover upon a contract which the statute requires to be in writing, it is not necessary, by the rules of pleading, to so aver, but that it is only necessary to prove that the contract was in writing; and, that the presumption is, 'that such proof was adduced upon the trial.

Plaintiff, in his complaint as hereinbefore set out, only charges that defendants. “ entered into a contract with the plaintiff, and in writing requested him to engage in service for them * as editor of the ‘Herald’ newspaper;” but does not directly aver that defendants undertook and promised in writing to pay $50 per week for such service in gold coin. By the rule which requires that a pleading shall be most strictly construed against the pleader, we do not think that any of the demands of plaintiff are sufficiently charged to have been based upon a contract in writing for the payment of gold coin.

The next question, then, is, whether it is necessary to the right to recover gold coin to aver that the contract for its payment was in writing. Some of the authorities hold that where the statute requires a contract to be; in writing the pleading is defective which does not so aver. (Estep et al. v. Burke et al., 19 Ind. 87; Le Roy v. Shaw, 2 Duer, 626; Thurman v. Stevens, Id. 609.)

And while there are some good reasons for the rule as laid down in the authorities above cited, and especially as a matter of practice to avoid consuming time in a controversy as to the sufficiency of the pleading, yet we are constrained to hold, from the preponderance of authorities, that the rules of pleading do not require such averment. (Livingston v. Smith, 14 How. Pr. R. 490: Stern v. Drinker, 2 E. D. Smith, 401; Dewey v. Hoag, 15 Barb. 365; Washburn v. Franklin, 28 Id. 27; Elting v. Vanderlyn, 4 John. 237; State of Indiana v. Woram, 6 Hill, 33; Cozine v. Graham, 2 Paige, 177; Chaplin v. Parrish, 11 Id. 405; Lamb et al. v. Starr, 1 Deady, 350; Hedges v. Strong, 3 Or. 18.)

In the first case above cited (Livingston v. Smith, 14 How. 490), the plaintiff sued for the specific performance of a contract for the sale of land, and omitted in her complaint to set out that the contract of sale was in writing; to which defendant demurred for that reason. Mr. Justice Harris, in overruling the demurrer, said: “The pleader may be supposed to know that when he alleges an agreement of this description he alleges what has no legal existence if it be not in writing. In the sense in which I am now considering the question, the fact itself does not exist if there be no written proof of it. When, therefore, as in this case, the pleader alleges the existence of an agreement which would be void if not in writing, it should be treated in pleading like any other fact, and assumed to be true unless controverted by the adverse party. If after this issue shall be disposed of (the demurrer), the defendant shall see fit to put in issue the existence of the agreement stated in the complaint, the plaintiff will of course fail upon the trial of that issue, unless she can prove her allegation by producing written evidence of the agreement. She will fail, not for the want of sufficient allegations to sustain her action, but for want of sufficient evidence to sustain such allegations.”

In the case in hand, although the plaintiff demands judgment for the entire sum claimed ($5788.50), in gold coin, yet he fails to allege that the agreement was to pay coin for any of the services rendered, except that of editing the “Herald” newspaper at $50 per week, and for such service he claims that there was due him a balance of $829 in gold coin. The presumption then would be, in the absence of any showing to the contrary, that the jury, in their verdict for $650 in gold coin, based their finding on the claim of plaintiff for a balance of $829 due,,, him as editor of such “Herald” newspaper. In the absence, then, of any showing that the jury erred in finding for gold coin, as expressed in their verdict, or that the court erred in its judgment for gold coin, based thereon, we find from the transcript of the record on file no error in the proceedings of the court below.^*

Judgment affirmed.

* Another view of the question involved in this ease is suggested by recent decisions holding that, in the absence of any statutory authority, as embraced in our Specific Contract Act (Mis. Laws, ch. 54, § 1), a judgment for gold coin is authorized upon proof of a verbal contract for its payment. But without expressing an opinion on this view of the question, the attention of those of the profession who .may be interested in their perusal, is invited to the following reported cases: Chrysler v. Renois (43 N. V. 209); Kellogg v. Sweeney (46 N. Y. 291); Aug. No. American Law Reg. 448.