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Title XXVIII CONTRACTS AND CONTRACTUAL RELATIONS

  Chapter 432back to chapter 432

  432.010.  Statute of frauds — contracts to be in writing. — No action shall be brought to charge any executor or administrator, upon any special promise to answer for any debt or damages out of his own estate, or to charge any person upon any special promise to answer for the debt, default or miscarriage of another person, or to charge any person upon any agreement made in consideration of marriage, or upon any contract made for the sale of lands, tenements, hereditaments, or an interest in or concerning them, or any lease thereof, for a longer time than one year, or upon any agreement that is not to be performed within one year from the making thereof, unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized, and no contract for the sale of lands made by an agent shall be binding upon the principal, unless such agent is authorized in writing to make said contract.

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(RSMo 1939 § 3354)

Prior revisions: 1929 § 2967; 1919 § 2169; 1909 § 2783

CROSS REFERENCES:

Actions on contract barred, revived by written promise, 516.320

Marriage contracts affecting property to be in writing, acknowledged, 451.220

Powers of attorney to convey real estate, how acknowledged and proved, 442.360

Agreements Not to be Performed in Year

(1961) Plaintiff could not recover in action for breach of oral contract for personal employment since if employment was to be for one year and to commence thirty-seven days after agreement was made it came within the statute of frauds and if employment was for an indefinite period then it was terminable at will and fact that in reliance on agreement plaintiff had quit his job would not estop defendant from denying the contract.  Morsinkhoff v. DeLuxe Laundry & Dry Cleaning Co. (A.), 344 S.W.2d 639.

(1973) Held lease required to be in writing by statute of frauds may be rescinded by subsequent oral agreement where unexpired term of lease is less than that period required by the statute for written agreements.  Gee v. Nieberg (A.), 501 S.W.2d 542.

(1974) Held that because contract could have been performed within a year it was not barred by statute of frauds. Want v. Century Supply Co. (A.), 508 S.W.2d 515.

Contracts Involving Lands

(1961) Description of real estate in writing as "Vo's bldg" held insufficient under statute.  Macy v. Day (A.), 346 S.W.2d 555.

(1961) Where agreement to enter into a lease was partly in writing but omitted a great many matters which were alleged to be in an oral part of the agreement it was not enforceable under the frauds.  Frostwood Drugs, Inc. v. Fisher & Frichtel Construction Co. (Mo.), 352 S.W.2d 694

(1962) Plaintiff, buyer, could not recover in action for damages for breach of alleged contract to convey realty against husband and wife, who held the realty as tenants by the entireties, where only the husband had signed the contract and there was no memorandum in writing signed by wife authorizing husband to act as her agent or ratifying his actions.  Austin & Bass Builders, Inc. v. Lewis (Mo.), 359 S.W.2d 711.

(1962) Where five year lease contained option provision by which lessee could continue as tenant under same terms and conditions for another five years the rental to be mutually determined by the parties at time of exercise of option, amount of rent to be charged was essential part of the contract and oral agreement thereon was unenforceable and fact that lessee remained in possession for 8 months and paid rent at same rate as previously paid under lease did not exclude option clause from statute of frauds.  Rosenberg v. Gas Service Co. (A.), 363S.W.2d 20.

(1967) Mere payment of money as partial performance will not take land sale contract out of statute of frauds.  Agreement not to contest will which was fulfilled was sufficient performance to take oral agreement to convey land out of the statute. Alonzo v Laubert (Mo.), 418 S.W.2d 94.

(1968) The statute of frauds applies with equal force to both the purchasers and sellers of real estate.  McQueen v. Huelsing (A.), 425 S.W.2d 506.

(1971) Where written contract in evidence described the property in question as 80 acres more or less, gave vendors' name, residence, showed the contract related to dairy farm, and vendors lived on subject farm and owned no other real estate, and contract executed with all parties present on the subject farm agreeing that exact legal description could be supplied later by real estate agent, the contract was sufficient under statute of frauds for purposes of reformation and specific performance. Deulen v. Wilkinson (Mo.), 473 S.W.2d 357.

(1987) Though this section requires that a contract for the sale of real property be evidenced by a writing, it does not require that a rescission of such contract, if such contract is yet executory, be reduced to a writing.  Smith v. Mohan, 723 S.W.2d 94 (Mo.App. E.D.).

Evidence

(1960) Evidence held sufficient to show the part performance of oral contract for the sale of land so as to take it out of the statute of frauds. Anderson v. Abernathy (Mo.), 339 S.W.2d 817.

Generally

(1963) No writing or memorandum is required where the promise to assume the debts of another is made to the debtor himself and not to the creditor.  Hafford v. Smith (A.), 369 S.W.2d 290.

(1973) Where the leading and main object of defendant's promise to plaintiffs that he would see that they were paid was in his own interest, the promise was not within the statute of frauds. Carvitto v. Ryle (A.), 495 S.W.2d 109.

(1974) Memorandum is sufficient to remove impediment of statute of frauds if it sets out essential terms of agreement.  Bayless Building Materials Co. v. Peerless Land Co. (A.), 509 S.W.2d 206.

(1986) A promise need not be reduced to writing under the provisions of this section dealing with promises to answer for the obligation of another person, if main purpose of such promise is to serve the interests of the promisor rather than such other person.  Baron v. Lerman, 719 S.W.2d 72 (Mo.App. E.D.).

(1987) It is sufficient to plead full performance of an oral contract to avoid a motion to dismiss under this section.  Irwin v. Berrelsmeyer, 730 S.W.2d 302 (Mo.App. E.D.).

Part Performance

(1960) A parol lease for five years and parol agreement to make the lease were within the statute of frauds and fact that lessor made improvements during the first year conditioned upon the lease did not amount to performance that would take the agreement out of the statute of frauds. Newkirk v. Moley (A.), 343 S.W.2d 213.

(1964) Removal of buildings from leased tract by lessors was as referable to written mining lease as to alleged new verbal agreement and lessor's conduct with respect to roads and ditches cut by lessees was nonaction rather than performance and not inconsistent with written lease, and therefore, alleged oral agreement was not taken out of the statute of frauds on ground of performance by lessors.  Zink v. Pittsburg & Midway Coal Mining Co. (A.), 374 S.W.2d 158.

(1964) In suit for specific performance of an alleged parol agreement between husband and wife to keep their existing mutual and reciprocal last wills and testaments in force and not revoke them held that there was not part performance on part of wife sufficient to remove the alleged parol agreement from the operation of the statute of frauds. Rookstool v. Neaf (Mo.), 377 S.W.2d 402.

(1968) Anticipatory, preparatory, collateral, and ancillary acts performed in reliance on a verbal contract, generally are not sufficient part performance to call for an exception to the provisions of the statute of frauds; but if the verbal agreement is sufficiently established, the acts are done with the knowledge of the other party, and if the changes in circumstances resulting from such acts are of such nature that the consequences thereof are, or may be, disastrous, the court may enforce the contract, even though the acts are not, strictly speaking, in execution of the contract.  Pointer v. Ward (Mo.), 429 S.W.2d 269.

(1986) A promise need not be reduced to writing under the provisions of this section dealing with promises to answer for the obligation of another person, if main purpose of such promise is to serve the interests of the promisor rather than such other person. Baron v. Lerman, 719 S.W.2d 72 (Mo.App.).

(1987) It is sufficient to plead full performance of an oral contract to avoid a motion to dismiss under this section. Irwin v. Berrelsmeyer, 730 S.W.2d 302 (Mo.App.).

(1987) Though this section requires that a contract for the sale of real property be evidenced by a writing, it does not require that a rescission of such contract, if such contract is yet executory, be reduced to a writing. Smith v. Mohan, 723 S.W.2d 94 (Mo.App.).


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