Montgomery v. Edwards

Supreme Court of Vermont

Montgomery v. Edwards

46 Vt. 151

CourtSupreme Court of Vermont

DecidedAugust 15, 1873

StatusPublished

Cited by14 cases

This text of 46 Vt. 151 (Montgomery v. Edwards) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Montgomery v. Edwards, 46 Vt. 151 (Vt. 1873).

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Opinion

[153]*153The opinion of the court was delivered by

Barrett, J.

It is not the province of this court to reverse the judgment of the county court, unless the exceptions show error in that judgment.

The case shows that the defendant, on the trial, “ admitted the making of the agreement, in nearly the same terms charged in the declaration.” Ho was defending on the ground that he had performed on his part, according to said agreement. The parol evidence of the agreement given by the plaintiff had been received without objection. Not till “ the arguments were partly concluded,” did the defendant’s counsel make any point on the fact that the agreetnem was not in writing. This was quite too late to be available after the admission of the agreement, voluntarily made, and without protest, by the defendant, (n the trial and in open court.

A contract within the statute of frauds is not illegal; but only not capable of being enforced against the defendant without writing, — an immunity which he may waive if he sees fit. Browne Frauds, 484. The statute does not interfere with the substance of the contract, but throws a difficulty in the way of the evidence. Bennett, J., 14 Vt. 446. It should seem that the provisions of the statute only affect the rules of evidence, and not those of pleading. 1. Chit Pl. 304. In Adams v. Patrick, 30 Vt. 520, the languageo quoted from Browne, supra, is adopted. As this view is effectual against the exception taken in the county court, the judgment is affirmed.

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[153]*153The opinion of the court was delivered by

Barrett, J.

It is not the province of this court to reverse the judgment of the county court, unless the exceptions show error in that judgment.

The case shows that the defendant, on the trial, “ admitted the making of the agreement, in nearly the same terms charged in the declaration.” Ho was defending on the ground that he had performed on his part, according to said agreement. The parol evidence of the agreement given by the plaintiff had been received without objection. Not till “ the arguments were partly concluded,” did the defendant’s counsel make any point on the fact that the agreetnem was not in writing. This was quite too late to be available after the admission of the agreement, voluntarily made, and without protest, by the defendant, (n the trial and in open court.

A contract within the statute of frauds is not illegal; but only not capable of being enforced against the defendant without writing, — an immunity which he may waive if he sees fit. Browne Frauds, 484. The statute does not interfere with the substance of the contract, but throws a difficulty in the way of the evidence. Bennett, J., 14 Vt. 446. It should seem that the provisions of the statute only affect the rules of evidence, and not those of pleading. 1. Chit Pl. 304. In Adams v. Patrick, 30 Vt. 520, the languageo quoted from Browne, supra, is adopted. As this view is effectual against the exception taken in the county court, the judgment is affirmed.

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46 Vt. 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montgomery-v-edwards-vt-1873.

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