A declaration on an agreement within the statute óf frauds need not allege that it was in writing. Price v. Weaver, 13 Gray, 272. The second count is therefore sufficient, and the judgment affirms the cause of action therein stated, since both counts are alleged to be for the same cause. The case may thus be rightly understood by the court, and the question of the sufficiency of the first count is immaterial. Gen. Sts. c. 129, § 34. Dryden v. Dryden, 9 Pick. 546.

Judgment affirmed.