Scofield v. Stoddard , 58 Vt. 290 ( 1885 )

The opinion of the court was delivered by

Ross, J.

The master has found, in substance, that the orator Scofield, in December, 1881, made an offer to the orator Rider, by which the latter could have the former’s interest in the premises in controversy, and in settlement of their partnership deal, upon the payment of $250, upon acceptance of the offer at any time before April 1, 1882; that Rider was then ready to accept the offer, if he could raise the money; that this offer was made known to the defendant, and he purchased Scofield’s interest in the premises, and took a deed thereof, on condition, as a part of the purchase, that he would fulfill Scofield’s offer to Rider, if the latter should accept and fulfill on his part; and that Rider did accept and tender fulfillment on his part. Upon these facts the orators are entitled to have the defendant convey the interest which the orator Scofield had in the premises to Rider, unless the contract to that effect is non-enforceable by reason of the Statute of Frauds. It is unnecessary to consider whether the letters — some of which are lost — which passed between Scofield and the defendant, sufficiently evidenced the contract in writing to take it out of the operation of the statute. The defendant has allowed the contract to stand proved, by evidence not in writing, without objection. Although he did not rely upon the statute in his answer, he denied the contract, and hence could have insisted that the contract should be proved only by evidence in writing, as required by the statute. He objected, before the master, to the evidence of the contract which was not in writing, but filed no exceptions to.the report in the Court of Chancery, because the master received and considered such evidence.- He thereby waived his objections and exceptions to the admission and consideration of this evidence. R. L. s. 730. The statute is peremptory that no exceptions to the admission of testimony by the master shall be considered unless insisted upon by exceptions to his report filed in the Court of Chancery. Hence the contract is proved by competent testimony, inasmuch as the defendant has waived his objections and exceptions to the evidence. It is well settled that the Statute of Frauds does not render a contract thereby required to be evidenced by a written instrument, illegal or void. It only forbids the proof of such contract by evidence not in writing. If the defendant waives the benefit of the statute by admitting in his answer the contract, without insisting upon the statute, or by allowing it to be proved by evidence not in writing, the contract is as enforceable as though not required by the statute to be evidenced by a written instrument. Montgomery v. Edwards, 46 Vt. 151.

The contract thus proved was not only made with the orator Scofield, but he is interested in its enforcement, as it operates to settle all his long partnership dealing with Rider. Hence Scofield is a proper co-orator.

The decree of the Court of Chancery is affirmed, and cause remanded with a mandate.