#### Elsie Marr, Appellee, v. The Burlington, Cedar Rapids *&*Northern Railway Company, Appellant.

Pleadings: statute of jraud. Where the pleadings disclose that 1 a contract is within the statute of frauds because not in writing, an objection thereto must be raised by demurrer and not by answer.

Statute of Frauds: parol evidence. Objection to proof of a 2 contract within the statute of frauds by parol must be made when the same is offered and not on appeal.

Boarding Contract: consideration. A restaurant keeper, avers 3 to boarding non-union men, was induced to do so on the agreement of defendant to furnish and pay the board of a certain number for a certain time at an agreed price. *Held,*that there was a sufficient consideration to support the contract.

Boarding Contract: action on: defense. The fact that a res-■4 taurant keeper closed her place of business after defendant, in *118violation of its contract, refused to furnish her boarders, ia not a defense to a suit on the contract on the ground that she disabled herself from its execution by going out of business.

Accord and Satisfaction. The mere fact that defendant paid to 5 a son of plaintiff the amount actually due on a boarding contract did not amount to an accord and satisfaction of the entire contract.

*Appeal from, Cedar Rapids Superior Court.*— HoN. Jamies H. RothroCK, Judge.

Wednesday, October 7, 1903.

Action to recover for breach of an alleged contract. The facts will be found stated in the opinion. At the close of the evidence for plaintiff the court, on motion, directed a verdict in favor of defendant. Thereafter a motion for new trial was made by plaintiff, and this was sustained. From the order granting new trial, defendant appeals.

*—AMrmed.*

*J. C. Leonard*and *S. K. Tracy*for appellant.

Rickel, *Crocker <& Tourtellot*and *Wm. Chamberlin*for appellee.

Bishop, O. J.

Plaintiff kept a boarding house or restaurant in Cedar Bapids, and her claim is, in substance, that in April, 1901, defendant, through its officers and agents, entered into a contract with her, by which defendant was to furnish her with at least sixty regular boarders, employes of defendant, for a period of at least six months, the defendant to pay to her the sum of $3.50 per week fox-each of such boarders. It is alleged that she consented to take such boarders at the price named, and did thereafter provide board for all the employes of defendant sent to her, but that the average number thereof did not exceed twenty, and that about June 13,1901, defendant renounced and refused to further comply with the contract. Plain*119tiff says that the fair profit which she would have realized on each boarder would have been seventy-five cents per week. The answer is a general denial, and, in addition thereto, the statute of frauds, and a full settlement are pleaded. From th‘e evidence introduced by plaintiff upon the trial the jury would have been warranted in finding the facts to be as follows: On April 28, 1901, certain of the officers of the defendant company came to plaintiff’s restaurant, and requested her to take to board a lot of nonunion men whom the defendant company had brought in to take the place of its striking employes. Plaintiff objected, saying she was afraid to take the men, because they were nonunion men; that she would be talked about mean for having scabs, and that it would ruin her trade. Defendant’s officers assured her that the railroad company would back her, and that, if she would take the men, they would fill her house with an average of sixty men, at least; that she could count on the arrangement lasting at least six months, and that the company would pay the board of all the men at the rate of $3.50 per week. To this she finally consented. The defendant furnished her and paid for an average of twenty men until June 13th, when it refused to carry out the arrangement any further. In the meantime all the other boarders of plaintiff left her, and, having no business, she was compelled to and did close up her house. That there would have been a profit on the business, had the arrangement been carried out, is not questioned.

i. pleadings: frauds. - Defendant says the order granting the new trial should be reversed, and judgment entered on the verdict, for reasons wdiich we will now proceed to consider. It is said, in the first place, that the oral contract sued upon was within the statute of frauds, there being no written or competent evidence to establish the same. The p srticular section of the statute relied upon is as follows: “Sec. 4625. Except when otherwise *120specially provided, no evidence of the following enumerated contracts is competent unless in . writing and signed by the party charged, or by his authorized agent: * ** **3. Those wherein one person promises to answer for the debt, .default or miscarriage of another,” etc. That the contract here relied upon was not reduced to writing appears from the allegations of the petition. No objection was made by demurrer, and the record does not disclose that any objection was made at the time the oral evidence was offered. It is not sufficient to raise the objection by answer alone. *Wiseman v. Thompson,*94 Iowa, 607; *Graves v.*Clark, 101 Iowa, 738.

*2.*statute of e^dence.aro1 When parol evidence of a contract within the statute of frauds is introduced upon the trial without objection, it cannot afterwards be objected to upon appeal. *Crossen v. White,*19 Iowa, 109. But, if this were not so, the objection is not well taken. The agreement was with the company to board its employes,and plaintiff was to be paid by the company. There was no promise to answer for the debt, default, or miscarriage of another.

3. boarding sideration. It is next said there was no consideration for the alleged contract. 'It does not appear that this ground of defense was raised in any way, either by pleading or in the motion to direct a verdict, in the court below. But, even it we might disregard the question as being raised in this court for the first time, we prefer to dispose of it on its merits, in view of a further trial of the case. In doing so, we need say no more than that plaintiff was induced by the promises of defendant’s officers to take the chances of having her business ruined by taking the men to board. The result was as she feared. We think the consideration was sufficient. See 1 Parsons on Contracts, 451; *Blake v. Blake,*7 Iowa, 46; *Harlan v.*Harlan, 102 Iowa, 701.

*121
      *4.*BOAKDING contract: action 011 defense.
      *120In the third place, it is said that plaintiff, by her own acts, disabled herself from the execution of the contrae', *121by going out of business. This ground cannot be sustained. The plaintiff did not go out of business until after defendant refused to send any more men to board, and she then found herself without any business. Defendant had no right to expect her to keep her doors opear and her empty tables waiting for the men it had refused to longer send to her.

s. accord and satisfaction, Finally, it is said that the whole claim of plaintiff was settled, and full accord and satisfaction had thereon, before 'this suit was brought. The evidence simply shows the son of plaintiff went to the office of defendant after the boarding of the men ceased, and there was paid to him the amount due on board which had actually been furnished. This did not of itself amount to a settlement of the claim here sued upon.

We have not undertaken to discuss any questions save those directly raised by the assignments of error. A motion for a new trial is addressed to the sound discretion of a trial court, and such discretion will not be interfered with except in cases of abuse. There was no abuse of discretion in granting a new trial in this case, and the order is ARMRMED.