Drake v. Livesay

• Decision Date: 07 March 1986
• Docket Number: No. 830585,830585
• Citation: 231 Va. 117,341 S.E.2d 186
• Parties: Curtis W. DRAKE v. A.W. LIVESAY, et al. Record
• Court: Virginia Supreme Court

Page 186

341 S.E.2d 186

231 Va. 117

Curtis W. DRAKE v. A.W. LIVESAY, et al.

Record No. 830585.

Supreme Court of Virginia.

March 7, 1986.

Richard E. Railey, Jr. (Railey & Railey, Courtland, on briefs), for appellant.

F. Bruce Stewart (Stewart & Stewart, Franklin, on brief), for appellees.

Present: All the Justices.

RUSSELL, Justice.

The sole question presented by this appeal is whether a letter constituted a sufficient written memorandum of an oral contract for the sale of land to satisfy the requirements of the statute of frauds.

Curtis W. Drake brought this action for damages against A.W. Livesay and Myrtle M. Livesay, his wife, alleging a breach of contract and a violation of the Virginia Consumer Protection Act. Drake's motion for judgment alleged that the Livesays had acquired a parcel of real property in Southampton County for $35,000 in April 1982; that A.W. Livesay, a licensed real estate broker, had promptly advertised the property for resale; that on May 17, 1982, Livesay, in his own behalf and as agent for his wife, entered into an oral contract to sell the property to Drake for $36,500 cash, promising to reduce the oral contract to writing on the following day; but that Livesay instead, on May 20, contracted to sell the property to parties named Turner for a price of $38,500 and, in fact, conveyed it to the Turners a few days later.

Conceding that Livesay had never reduced the oral contract of May 17 to writing, Drake nevertheless asserted that Livesay had, by writing a letter apologizing for having sold the property to Turner for a higher price, made a sufficient written memorandum of the oral agreement to satisfy the statute of frauds. Livesay's letter, attached to the motion for judgment, is as follows:

FROM THE DESK OF A.W. LIVESAY May 20, 1982

Curtis Drake Continental Telephone Co.

Ivor, Virginia 23866

Dear Curtis:

We, Holt and I ^* did today sell to the Turners of Portsmouth the Emmett and Ethel Dunlow's property. They had proposed to pay us $38,500.00 for this same property that I had told you we would sell to you but, as I told you on the phone I, after discussing this with Holt had no other alternative but, to sell to the same people that had approached you about buying and after finding that you did not own came to proposition me.

Curtis, They will rent to your father as Emmitt did as they don't want to run the store only want to live there after selling their Portsmouth property. For your sake I am sorry but, for my sake as much time and effort as I had put into working with Emmitt in the sale of the Franklin property and buying his property I think I am entitled to this increase in price.

Sincerely,

A.W. Livesay

The Livesays demurred on the sole ground that the foregoing letter was not a sufficient memorandum to satisfy the statute of frauds, and, therefore, that the prosecution of Drake's action was barred on both asserted theories. The court sustained the demurrer and dismissed Drake's action. We granted an appeal.

The statute of frauds, Code § 11-2, provides in pertinent part that no action shall be brought on a contract for the sale of real estate unless the contract "or some memorandum or note thereof, be in writing and signed by the party to be charged thereby, or his agent; but the consideration need not be set forth or expressed in writing, and it may be proved (where a consideration is necessary) by other evidence."

In Murphy v. Nolte & Co., 226 Va. 76, 307 S.E.2d 242, (1983), we said: "The statute of frauds, procedural and remedial in nature, is concerned with the enforceability of a contract and not its validity.... The statute will not be applied when the result is to cause a fraud or perpetrate a wrong, because the object of the statute is to prevent frauds." Id. at 81, 307 S.E.2d at 245 (citations omitted). Thus, the statute does not require that contracts within its purview be written. It merely interposes a bar to the enforcement of certain oral contracts, which bar may be removed by proof of a sufficient written memorandum of the transaction. When the bar is removed, it is the oral contract which is subject to enforcement, not the memorandum. Because the memorandum serves only to remove a bar to the enforcement of the oral contract, the validity of the oral contract may be established by other evidence. Browder v. Mitchell, 187 Va. 781, 785, 48 S.E.2d 221, 223-24 (1948); see also Troyer v. Troyer, 230 Va. 90, ---, 341 S.E.2d 182, 185 (1986), Reynolds v. Dixon, 187 Va. 101, 46 S.E.2d 6 (1948); Johnson v. Ronald's Adm'r., 18 Va. (4 Munf.) 77 (1813).

The Livesays contend that the May 20 letter is an insufficient memorandum for three reasons: (1) because it fails to express the essential terms of the contract; (2) because it was not signed by Mrs. Livesay, who owned the property with her husband as tenants by entireties; and (3) because it was a memorandum only of an offer to sell, not of a bilateral contract.

We agree with Drake's contention that the letter expresses the essential terms of the alleged contract to the extent necessary to take the case out of the statute of frauds. The contracting parties, Drake and A.W. Livesay, are identified. The property is identified as "Emmett and Ethel Dunlow's property" and "this same property that I had told you we would sell to you." The statute expressly dispenses with any requirement that the memorandum state the consideration agreed upon. The terms of payment are not stated expressly, but this is unnecessary. In the absence of agreement regarding deferred purchase money, it is presumed that a contract of sale contemplates payment in cash. Rose v. Spa Realty Assoc., 42 N.Y.2d 338, 346, 397 N.Y.S.2d 922, 928, 366 N.E.2d 1279, 1285 (1977); cf. Vick v. Howard, 136 Va. 101, 116 S.E. 465 (1923) (if not waived, vendor is entitled to full payment in legal tender). Thus, the contents of Livesay's letter fulfill the requirements of the statute of frauds. See Reynolds v. Dixon, 187 Va. at 108, 46 S.E.2d at 9.

Drake concedes that Mrs. Livesay's failure to sign the memorandum would be fatal to a claim for specific performance because an estate by entireties cannot be severed by the sole act of either spouse. Vasilion v. Vasilion, 192 Va. 735, 740, 66 S.E.2d 599, 602 (1951). Drake argues, however, that Mr. Livesay was capable of contracting to convey property which he did not own at the time of contracting and would be answerable to Drake in damages for his subsequent inability to...