Wolf v. Herrman

Had the defense of the statute of frauds been pleaded or raised at the trial, the plaintiff’s recovery would have been limited to $50; and, in view of the tender of that amount before suit brought and its subsequent payment into court, the judgment should have gone for the defendant. In the absence of such a plea, the justice was warranted in awarding $75 to the plaintiff; but the judgment in his favor should have been in the sum of $25, as the $50 on deposit awaited his order. Judgment modified, by reducing it to $25 and costs, and, as modified, affirmed, without costs.