Miller v. Auble

If it is not .alleged in the petition that the contract was or was not in writing, and a general denial is filed, the plaintiff, upon trial, is required to sustain the issue by competent evidence, and the statute is available to the defendant by objection at the trial to oral evidence to prove the contract.

Birchell v. Neaster, 36 OS. 331.

In this case the petition expressly alleges that the contract sued upon was not in writing, and of course it was unnecessary for the defendant to plead the statute; and having filed a general denial, he did not waive the defense of the statute by not…