Durrette, Irvin & Lemons v. Hutson

By JUDGE WILLIAM H. LEDBETTER, JR.

The issue presented is whether the claim asserted by the plaintiff is barred, on its face, by the statute of frauds.

On demurrer, the defendant contends that the undertaking alleged in the motion for judgment is merely that of a surety or guaranty and therefore falls within the writing requirements of Virginia Code § 11-2(4). The plaintiff argues that its pleading sets forth sufficient facts to show an original independent undertaking by the defendant such that the promise is outside the statute. Alternatively, the plaintiff contends that the defendant’s…