Russell v. Swift ( 1874 )

By the Court,

Prim, J.:

It is claimed by appellant that a judgment for gold coin can only be rendered on a written contract to pay such particular kind of money and that it should be averred in the complaint that the contract was in writing. Our statute provides “ that the several courts, within this State, in giving judgment * * * 0n a written contract, for the payment of gold coin, * * * * shall, if either party require, it, adjudge that the principal sum, so contracted, and the interest thereon, shall be paid in the kind of money so specified in said contract.” (Mis. Laws, ch. 54, § 1.)

In this cause it is alleged in the complaint that the defendant promised to pay gold coin without averring that the contract was in writing. This allegation is not denied. The only defense made in the answer is payment and satisfaction. And this defense not having been made out, and the allegations of the complaint not being denied by the .answer, they are to be taken as true, and the court below so found.

The judgment is for coin, and the question arises, Does the failure to aver that the contract was in writing render the complaint insufficient to sustain such .judgment? To this we answer, that in cases of this kind it is not necessary to allege in the complaint that the contract was in writing; but if' it is questioned or denied, it must be proved on the trial by the writing. (Taylor v. Patterson, ante, p. 121.)

The principle laid down in that case, we think, is decisive of this one. Bonham, J., who delivered the opinion of the court, said: “Although our statute requires (or at least contemplates) that a contract for the payment of gold coin, to be valid, must be in writing, yet the rules of pleading in such cases do not require the complaint to aver ■ that such agreement was in writing. The statute above referred to, and commonly known as the ‘ Specific Contract Act,’ does not operate to change the rule of pleading in actions to recover gold coin, but only requires a different quality of evidence.” The authorities cited fully sustain the decision announced.

The majority of the court are of the opinion the judgment should be affirmed.

Mr. Chief Justice Bonham dissented.