Gramatan Home Investors Corp. v. Whittemore

Plaintiffs appeal the trial court’s holding that, by failing to submit documentary evidence of assignment, plaintiffs failed to establish their right to foreclose on a note and mortgage originally executed by the defendants. It is well established that the Statute of Frauds is waived if parol evidence is offered without objection to prove the existence of a contract. Couture v. Lowery, 122 Vt. 239, 243, 168 A.2d 295, 298 (1961); Taplin v. Hinckley Fibre Co., 97 Vt. 184, 187, 122 A.2d 426, 427 (1923). Defendants here waived their Statute of Frauds defense by failing to object to oral testimony as to the existence of an assignment of the note and mortgage. Although the written documents were not placed in evidence, testimony introduced by plaintiffs without objection supported their contention that the note and mortgage were assigned from Home Investors Trust d/b/a Gramatan Co. to Home Investors Co. to Gramatan Home Investors Corporation. Therefore, it was error to dismiss the action for failure to establish a prima facie case. Reversed and remanded.