Jamerson v. . Logan

Stacy, C. J. We think the plaintiff has misconceived her rights and remedies. Conceding, without deciding, that the complaint contains sufficient allegation of a special promise on the part, of C. L. Freeman to devise and bequeath all of his real and personal property to the plaintiff in consideration of services to be rendered by her — the theory upon which the case was tried — we think the action, as thus encompassed and tried, must fail because the promise falls within the statute of frauds and is not in writing. Cf. S., 22-2; Stewart v. Wyrick, ante, 429; Coley v. Dalrymple, 225 N. C., 67, 33 S. E. (2d), 477. An agreement to devise real property is within the statute of frauds, as is also an indivisible contract to devise real and personal property. Grady v. Faison, 224 N. C., 567, 31 S. E. (2d), 760. “Where the plaintiff declares upon a verbal contract, void under the statute of frauds, and the defendant either denies that he made the contract or 'sets up another and a different agreement, testimony offered to prove the parol contract is incompetent and should be excluded on objection.” Browning v. Berry, 107 N. C., 231, 12 S. E., 195; Anno. 158 A. L. R., 89, et seq. The defendant does not specially plead the statute of frauds, but he denies the contract in his answer. Grantham v. Grantham, 205 N. C., 363, 171 S. E., 331. This put the plaintiff to proof and required her -to make out her case, “as a denial of the execution of the contract in the answer was sufficient to protect the defendant from liability under the statute of frauds, and it was not necessary to plead the statute specially.” Miller v. Monazite Co., 152 N. C., 608, 68 S. E., 1; McCall v. Industrial *543 Institute, 189 N. C., 775, 128 S. E., 349; Price v. Askins, 212 N. C., 583, 194 S. E., 248; McIntosh on Procedure, 486. Indeed, it is said in a number of cases that the denial of the contract is equivalent to a plea of the statute. Ebert v. Disher, 216 N. C., 36, 3 S. E. (2d), 301; McCall v. Industrial Institute, supra. The effect of the defendant’s denial was to impose upon the plaintiff the burden of showing a written contract which complies with the statute of frauds, if he would recover on the contract or for its breach. Henry v. Hilliard, 155 N. C., 372, 71 S. E., 439, 49 L. R. A. (N. S.), 1; Anno. 158 A. L. R., 122-124. It is settled by numerous decisions that if the contract be denied, or a contract different from the one alleged is set up, or if the contract be admitted and the statute of frauds specially pleaded, parol evidence is inadmissible to show the existence or terms of the agreement. Henry v. Hilliard, supra; Holler v. Richards, 102 N. C., 545, 9 S. E., 460; Morrison v. Baker, 81 N. C., 76; Dunn v. Moore, 38 N. C., 364. “Where the plaintiff sues upon a contract, the performance of which he seeks to enforce specifically in equity, or for the breach of which he seeks to recover damages at law, he must establish the contract by legal evidence, and if it is required by the statute to be in writing, then by the writing itself, for that is the only admissible proof.” Winders v. Hill, 144 N. C., 614, 57 S. E., 456; Balentine v. Gill, 218 N. C., 496, 11 S. E. (2d), 456; Morrison v. Baker, supra. As a dernier ressort, the plaintiff contends that the defendant waived the defense of the statute when he permitted the witness, Haywood Jamerson, to answer the last question propounded to him without objection. (See question and answer above set out.) There are several answers to this contention. In the first place, it will be noted that objection Avas entered to the question, next immediately preceding the one propounded to the witness, and the last question was but another way of formulating the same question which had just been the subject of objection. Secondly, it may be doubted whether this last question and answer, even if admitted without objection, make out a promise on the part of O. L. Freeman to leave his property to the plaintiff by will. Browning v. Berry, supra. Thirdly, it was held in Grantham v. Grantham, supra, that where there was a denial of the contract the defense of the statute was not waived by a failure to object to the parol evidence offered on the hearing. The holding is supported by several earlier decisions. Gulley v. Macy, 84 N. C., 434; Morrison v. Baker, supra; Bonham v. Craig, 80 N. C., 224; Barnes v. Brown, 71 N. C., 507; S. c., 69 N. C., 439; Allen v. Chambers, 39 N. C., 125. See Note, 49 L. R. A. (N. S.), pp. 12 and 18; also 158 A. L. R., 138. The defendant’s failure to object to evidence would not perforce work an abandonment of his defense- or a waiver of the denial of the contract. Barnes v. Teague, 54 N. C., 278; Hall v. Misenheimer, 137 N. C., 183, 49 S. E., 104; Heed v. Trust Co., *544 224 N. C., 103, 29 S. E. (2d), 206; Harvey v. Linker, 226 N. C., 711, 40 S. E. (2d), 202. Cf. Allison, v. Steele, 220 N. C., 318, 17 S. E. (2d), 339. Moreover, in view of tbe theory of tbe trial tbe defendant may bave considered any evidence of a parol agreement irrelevant and of no avail to tbe plaintiff in making out her ease. Luton v. Badham, 127 N. C., 96, 37 S. E., 143; Jordan v. Furnace Co., 126 N. C., 143, 35 S. E., 247. “As the agreement was denied in tbe defendant’s answer, it was not necessary for bim to insist on tbe statute as a bar. Tbe complainant in sucb case must produce legal evidence of tbe agreement wbicb cannot be established by parol proof merely” — Bank v. Root, 3 Paige Ch., 478, quoted with approval in Bonham v. Craig, supra. Likewise, tbe following terse statement from Morrison v. Baker, supra, has been repeated in a number of later cases: “A contract wbicb tbe law requires to be in writing can be proved only by tbe writing itself, not as the best, but as tbe only admissible evidence of its existence.” Tbe protection of tbe statute extends not only to tbe performance of tbe contract, but to its discovery as well. Barnes v. Teague, supra. To show a parol agreement, when a written one is required, is to fall short of tbe necessary proof. Kluttz v. Allison, 214 N. C., 379, 199 S. E., 395. Tbe plaintiff would bave us adopt tbe English practice wbicb prevails under a statute somewhat different from ours, and wbicb is enforced as a rule of evidence. Jordan v. Furnace Co., supra. The first North Carolina decision on the subject, Lyon v. Crissman (1839), 22 N. C., 268, indicated a preference for tbe English practice, but this was soon abandoned in tbe case of Allen v. Chambers (1845), 39 N. C., 125. Since this latter decision, we bave followed tbe rule that when tbe protection of tbe statute is invoked, tbe plaintiff is entitled to recover only by showing compliance with its provisions. Gulley v. Macy, supra; Balentine v. Cill, supra. Tbe English statute of frauds goes only to tbe enforcement of contracts coming within its terms, and not to their validity. Ours affects tbe substance as well as tbe remedy. Hence, tbe difference in procedural insistence. Expressions may be found in some of tbe cases wbicb seem to overlook this distinction. However, in most of them it will be discovered that tbe point now under review was not in focus. Every expression to be correctly understood, ought to be considered with a view to tbe circumstances of its use. Krites v. Plott, 222 N. C., 679, loc. cit. 683, 24 S. E. (2d), 531; U. S. v. Burr, 4 Cranch., 469. Tbe plaintiff’s dernier position is not sustained. Tbe complaint is broad enough, however, to support a recovery on implied assumpsit to pay tbe plaintiff the reasonable worth of her services or quantum meruit as expressed in some of tbe cases, and there is evidence to warrant the submission of tbe case to tbe jury on this theory. Grady v. Faison, supra; Neal v. Trust Co., supra. Indeed, it may be doubted whether tbe complaint or tbe evidence shows more than a cause *545 of action for tbe reasonable worth, of plaintiff’s services. Stewart v. Wyrick, supra; Coley v. Dalrymple, supra. “Where the plaintiff alleged a contract to pay for services performed, and, upon the trial, failed to prove a special contract, but did prove the performance of the services and their value: Held, that he was entitled to recover upon quantum meruit without amending the complaint.” Third Syllabus, Stokes v. Taylor, 104 N. C., 394, 10 S. E., 566. See Roberts v. Woodworking Co., Ill N. C., 432, 16 S. E., 415, and McIntosh on Procedure, 421. The verdict and judgment will be set aside and the cause remanded for trial on the theory of implied assumpsit or quantum meruit. New trial.