Hamilton v. Fred Miller Brewing Co.

ELLISON, J. This is an action on a contract for services. The plaintiff prevailed in the trial court. There are but two points preserved in the motion for' new trial. One relates to the Statute of Frauds and the other to the admission of testimony as to what defendant claims was verbal portion of the contract made prior to the writing, which likewise is made to depend upon the statute. The petition declares on a contract not to be performed within one year from its making, it was there [582] fore a contract necessary to be in writing to be valid under the statute of frauds. [Miller v. Goodrich Bros., 53 Mo. App. 430.] The petition further declares that the contract was partly in writing and partly verbal. Under the Statute of Frauds it is necessary that the entire contract be in writing, it cannot be helped by oral evidence. [Warren v. Mayer, 161 Mo. 112; Ringer v. Holzclaw, 112 Mo. 522; Rucker v. Harrington, 52 Mo. App. 481.] But in this case there was no demurrer and there is no plea of the statute in the answer. The answer contains a general denial and then states the whole contract was in the writing, which it pleads in extenso■, being the same one pleaded in the petition. The answer then sets up certain verbal matters under the guise of verbal representations as inducements to the contract. But taking it as a whole, it is manifest that it too states a contract partly written and partly in parol. As already stated, there was no demurrer to the petition, nor was any objection taken to the answer. An objection was made by defendant after the trial opened to the admission of any evidence under the petition. That is a practice which the appellate courts of the State say is tolerated but is not commended! It is a rule of pleading that a petition which would be readily ruled to be defective if advantage was taken of the defect by demurrer, may be aided by the answer. [Summers v. Ins. Co., 84 Mo. App. 605; Grace v. Nesbitt, 109 Mo. 15.] In the latter .case it is said that when an issue is tried which is tendered by the answer a complaint afterwards “cotaies too late.” And that “Defendants must be consistent and abide the result of an issue they aided in making.” If we concede that from the nature of the statements in the-petition there was no “express aider” in the answer as that term is known to pleading, yet it is certain that the answer is such as to cut off any right to complain of the petition, and [583] tbe trial court doubtless so regarded tbe case as made under issues tendered by defendant. So we regard the trial court’s ruling on defendant’s motion to strike out all evidence concerning the verbal matters which passed between the parties, on the ground that it caJme within the prohibition of the Statute of Frauds. The Statute of Frauds, on account of the action of the parties, had been taken out of the case and the trial court took the case as it was presented. The result of defendant’s position is that it should have been allowed to introduce parol evidence and that plaintiff should not. That would have been a privilege to which it would not have been entitled. The record discloses that the whole case has been fairly tried on grounds which the parties chose for themselves and we are satisfied with the result. The judgment is affirmed. All concur.