Patten v. Hicks

         The defense of the Statute of Frauds must be pleaded or it will not avail. (Smith v. Owen, 21 Cal. 11; McComb v. Reed, 28 Cal. 289; Tynan v. Walker, 35 Cal. 634; Chitty on Pleading, Vol. 1, p. 559; 4 Bing. 470; Osborne v. Endicott, 6 Cal. 149; Maynard v. Johnson, 2 Nev. 16.)

         The contract is not within the Statute of Frauds. The plaintiff could, under the contract, perform his part of it in one month. (2 Kent, 713; Tolley v. Green, 2 Sand. C. 91; Moore v. Fox, 10 Johns. 244; McLees v. Hale, 10 Wend. 426; Fenton v. Emblers, 3 Burr. 1278; Russell v. Slade, 12 Conn. 455.)

         JUDGES: Belcher, J. Mr. Justice Crockett did not express an opinion.

         OPINION

          BELCHER, Judge

         The contract declared on was not to be performed within one year from the making thereof, and the parties having failed to reduce it to writing, or to make any note or memorandum thereof, it is within the Statute of Frauds and void.

         For the labor and services performed under this void contract the plaintiff can only recover on a quantum meruit. No such count being found in the complaint, the judgment must be reversed.

         When the case is again in the Court below the plaintiff may amend his complaint if he is so advised.

         Judgment reversed and cause remanded.