McDonald v. Mission View Homestead Ass'n

By the Court: The decree must be modified by deducting the sum of twenty dollars, and interest thereon, from the sum of four hundred and sixty dollars mentioned in the fifth finding, and striking out that portion of the decree directing that the five hundred and forty dollars allowed for improvements be paid in gold coin.

So ordered.

By the Court, on petition for a rehearing:

The petition for a rehearing assumes as a fact appearing in the record, that the agreement for the conveyance of the [212]real estate in question was not in writing, and was, therefore, void, within the statute of frauds.

"Upon looking into the record we find nothing in support of this assumption.

It is alleged in the complaint that the plaintiff “bargained with the defendant, Monahan, to buy of him ” the premises in controversy, and that the defendant “ sold the same to him for the sum,” etc. The answer upon this point denied that any such bargain was made. The finding in this respect is that Monahan and Beardon “ contracted to sell and cause to be conveyed to the plaintiff the lot of land described in the complaint,” etc.

The record does not contain any evidence given at the trial. For aught that appears, therefore, the alleged contract was in writing. It was not necessary that the complaint should contain an allegation that the contract was in writing; nor was it necessary that the findings should set forth that it was in writing. If the contract was in fact merely verbal, objections should have been taken to the character of the proof offered to establish it, and if the objections were overruled, an exception should have been properly reserved.

In the absence of such a record we must assume that the contract was in writing; and in this view the argument made in the petition has no application.

Eehearing denied.