Abba v. Smyth

Decided December 2, 1899

' H. H. Rolapp, Judge. Action by the plaintiff to recover damages on account of an alleged breach of a written contract. From a judgment for defendant, plaintiff appealed. An agreement in its first inception may lack mutuality, and may have no consideration expressed, yet certain acts may afterward be done by the party not bound in the first instance, which will give the agreement mutuality and a consideration. Jones v. Snow, 2 Pac.

Cited by 1 later decisions — most recently December 1984

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Reversed · Decided 1899-12-02

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BasKIN, J.,

¶1concurring in result.

¶2The defense of the statute of frauds is a personal privilege which may be waived.

¶3In this case the defendant expressly admitted the making of the contract in his answer, and alleged a performance of the same on his part, and the breach of the same on the part of plaintiff, and by way of counter-claim sought to recover $500 damages for such breach.

¶4In view of these facts the defendant waived the defense of the statute of frauds, and it was not an issue in the case.

¶5 *121That portion of the opinion of my associates which holds in accordance with the views which I have expressed, disposes of the question of the statute of frauds, and the balance of the opinion on that subject is obiter dictum.