Heinrich v. Martin

• Decision Date: 22 April 1965
• Docket Number: No. 8213,8213
• Citation: 134 N.W.2d 786
• Parties: Richard HEINRICH, Plaintiff and Appellant, v. Gottlieb MARTIN, also known as G. S. Martin, and Frieda Martin Defendants and Respondents.
• Court: North Dakota Supreme Court

Page 786

134 N.W.2d 786

Richard HEINRICH, Plaintiff and Appellant, v. Gottlieb MARTIN, also known as G. S. Martin, and Frieda Martin Defendants and Respondents.

No. 8213.

Supreme Court of North Dakota.

April 22, 1965.

Syllabus by the Court

1. An agreement for the sale of real property is invalid unless the contract, or some note or memorandum thereof, is in writing, signed by the party to be charged, or his agent. If the agreement is made by an agent, the authority of the agent must be in writing and signed by the party sought to be charged.

2. A real estate broker with whom land is listed does not have the power to make a binding contract for its sale unless he has written authority, signed by the owner, to make a binding contract.

3. The provisions necessary for a formal contract need not be set forth in a memorandum, and the memoranda need not be in one document. It is sufficient if several documents show the identity of the contracting parties, the subject matter, and the consideration, and disclose the terms and conditions upon which the contract is executed.

4. The writing of a check for a portion of the down-payment, and delivery of such check to the broker, is not such partial performance as to take the transaction out of the statute of frauds.

5. In the instant case it is held, for reasons stated in the opinion, that the plaintiff, as purchaser, is not entitled to specific performance of the alleged agreement for sale of land.

Max A. Wishek, Ashley, for plaintiff and appellant.

Robert Chesrown, Linton, and Kretschmar & Kretschmar, Ashley, for defendants and respondents.

STRUTZ, Judge.

The defendants are the owners of certain real estate located in McIntosh County, North Dakota. The plaintiff brings this action for specific performance of an alleged contract to sell the land, basing the cause of action on a memorandum, a letter, and partial performance. The defendants raise a number of defenses, including the defense of statute of frauds, alleging that, since the so-called contract is one for the sale of real estate, it is within the provisions of the statute of frauds and not enforceable because there is no sufficient memorandum to take the transaction out of the state, nor is there any evidence of partial performance sufficient to satisfy the legal requirements of the statute.

The case was tried to the district court of McIntosh County. The court held for the defendants on the ground that there was an insufficient memorandum and insufficient evidence of partial performance to take the transaction out of the statute of frauds. From the judgment entered dismissing the plaintiff's complaint, the plaintiff has appealed, demanding a trial de novo.

The first question for consideration is whether the memorandum relied upon, including the correspondence between the parties, is sufficient to constitute a valid contract of purchase and sale of real estate under our law. It is undisputed that Gottlieb Martin listed the land in question for sale with one J. F. Schneider, a real estate broker. The listing agreement, which the defendant Martin admits signing, was dated, and it listed, among other things, the total acreage, the number of acres under cultivation, the sale price per acre, the required down-payment, and the manner in which the balance due should be paid. Nowhere in the listing agreement was the broker given any authority to enter into a contract of sale of the land with any prospective buyer.

After such listing, the broker sought a buyer and, almost one year after the date on the listing agreement, he interested the plaintiff in the defendant's land. It is agreed that the defendant Gottlieb Martin did not sign any memorandum or other writing by which he contracted to sell the land to the plaintiff, but he did write a letter to the plaintiff, agreeing to sell the land to him under certain definite terms and conditions. He also orally told the broker to get the plaintiff to issue a check to the broker and one to the defendant for a part of the down-payment to 'close the deal.' It is the listing agreement which the defendant signed, the defendant's letter to the plaintiff offering to sell the land, and the request for and delivery of such check, that form the basis for the plaintiff's cause of action.

Section 9-06-04, North Dakota Century Code, provides that certain contracts are invalid unless the contract, or some note or memorandum thereof, is in writing, signed by the party to be charged, or by his agent. Among the contracts that are thus declared to be invalid are agreements for the sale of real property. This section further provides that, if such agreement is made by an agent of the party to be charged, the authority of the agent must be in writing, signed by the party sought to be charged.

Thus a real estate broker, with whom lands are listed for sale by an owner, has no authority to make a contract for sale which is binding on the owner in the absence of written authority, signed by the owner. Any writing which plaintiff might have received from the broker, as defendants' agent, would not be binding on the defendants...