Herbener v. Boston Oil & Guano Co.

Broyles, J. The court did not err in sustaining the general demurrer and dismissing the suit. The suit was upon an alleged contract for the sale of certain goods, as set forth in the plaintiff’s petition; and- the petition as amended showed upon its face that the contract was for the sale of goods to the amount of more than- $50. The petition a-s amended further showed that the contract was not in writing, and failed to show any part performance thereof, or anything else that .would relieve it from the operation of the statute of frauds. (a) The general demurrer, as treated by the pleader, consisted of two grounds. The first alleged that no cause of action was set out, and the ■ second ground pleaded the statute of frauds. While this second ground of demurrer was technically a special demurrer (the decisions being that the statute of frauds must be specially pleaded), the pleader and the court having treated it as a ground of the general demurrer and the case having been properly dismissed thereon, the court’s judgment in dismissing the same will .not be reversed merely because therein the- court stated that it overruled the special demurrers and sustained the general demurrer; it being clearly apparent that-the court intended to sustain' that ground of the demurrer which pleaded the statute of frauds. Judgment affirmed.