Craig v. Kessing

ARNOLD, Judge.

I

This appeal first presents the issue of whether the trial court correctly concluded that the disputed option agreement was void for failure to comply with the statute of frauds. None of the defendants pleaded the statute as required by G.S. 1A-1, Rule 8(c), but the trial court, nonetheless, addressed this affirmative defense. Since plaintiff has claimed no surprise by the trial court’s action, the issue will be considered as though properly raised. See Wright & Miller, Federal Practice and Procedure: Civil § 1278.

The statute of frauds, G.S. 22-2, is applicable to option…