Alger v. Johnson

Under the pleadings the plaintiff, in order to recover, was bound to prove a valid contract. The complaint does not set forth the contract, but only avers an indebtedness generally. The answer contains a denial of all the allegations in the complaint and then puts in issue all the facts on which the indebtedness of the defendant depends. It is only where the complaint sets forth a contract, and the answer admits that allegation, that the defendant must plead the statute of frauds. Moak’s Van Santv. Pl. 505, 555; Duffy v. O’Donovan, 46 N. Y. 226.

"We think the contract proved was not within the statute of frauds, but was an original undertaking of the defendant, and not one collateral to a promise by Baker. The fallacy of the argument on behalf of the defendant consists in the assumption that Baker incurred the same debt to the plaintiff, whereas the proof is that the plaintiff refused to be employed by Baker, and thereupon the defendant employed him to do the work under Baker’s orders. We have no doubt that the terms of this employment comprehended the supplying of materials.

There was no error in admitting in evidence the contract for the sale of the land, and the assignment thereof, because they showed the defendant’s interest in the premises, and so aided the referee in interpreting the language used by the parties when the indebtedness sued on was incurred.

The judgment should be affirmed.

Judgment affirmed.