- Walker (Appellant)
- Ireton (Appellee)
This is an action for the specific performance of an oral
contract for the sale of farm land.
Ireton, Df - asserting the defense of the statute of frauds.
Ireton then filed a motion for summary judgment on the ground
that Walker was not entitled to specific performance as a matter
of law because of the application of the statute of frauds.
Trial Court - Sustained SJ
The trial court sustained the defendants' motion for summary
judgment and the plaintiff has appealed.
Iretons owned a farm that was 160 acres.
Ireton orally agreed to sell his farm to Walker for $30,000.
Ireton was to forma the crop land on shares and was to pay the
real estate taxes through the year 1973.
Walker was to be permitted to spray the trees in the pasture to
Walker would receive full possession of the farm in January
Later Ireton stated to Walker he had sold the farm to cheap.
Walker said he would through in another $500.
The purchase price was to be paid as follows: $ 50 on July 30,
7,612.50 on or before September 30, 1973;
22,837.50 on or before January 1, 1974.
Continued to live in house
The Iretons were to continue to live in the house until January
1, 1974, when Walker was to take complete possession.
Approved terms, No Written K
Mr. and Mrs. Ireton approved the terms of the sale and Walker
again suggested that a written contract be prepared.
Ireton stated that his word was good
and it would be prepared later.
Delivered first Payment
On July 30, 1973, Walker delivered his $ 50 check to Ireton.
Never endorsed or cashed
This check was never endorsed or cashed.
Attempts for Written K
On at least four subsequent occasions thereafter Walker
attempted to convince Ireton that a written contract was needed
to complete the agreement.
Ireton would not sign written K
At one time Walker took a written contract to the Iretons to be
signed. On each occasion Ireton said that a written contract was
not needed since he was honest. A written contract was never
Abstract and Legal Inspection
$36 for abstract.
$75 for attorney inspection.
Iretons new home not complete
Walker agreed to let Iretons stay.
ETA Completion: Jan. 1, 1974.
Offered $200 to Walker to back out.
He sold his other farm.
Ireton Refused second payment
Backing out of agreement.
Mrs said she would pay Walker for abstract and damages.
Walker was evicted.
Walker filed action
For specific performance.
Ireton Arg - Oral contract was not enforceable because of the
statute of frauds
Statute of frauds
No action shall be brought to charge a party upon any contract
for the sale of lands
"unless the agreement upon which such action shall be brought,
or some memorandum or note thereof, shall be in writing and
signed by the party to be charged therewith, . . ."
The trial court sustained the Iretons' motion for summary
Accepted the plaintiff's factual contentions as true.
There was an oral agreement for the sale in accordance with the
terms suggested by Walker.
Walker Arg - statute of frauds was not available as a defense on
the basis of partial performance
The court then considered Walker's contention that the statute
of frauds was not available as a defense on the basis of partial
performance, fraud, waiver, estoppel or ratification.
Trial Court - Not sufficient equities
The trial court concluded that there were not sufficient
equities in the case to justify the court in taking the case out
of the statute of frauds.
This was a classic case of an oral contract for the sale of
Because of the statute of frauds the oral contract was not
Walker - Appealed
Whether equitable considerations prevented the statute of frauds
from being asserted as a defense to the action on the oral
Walker Arg - statute of frauds was not available as a defense on
the basis of partial performance
Counsel for Walker takes the position that the statute of frauds
should be held to be inapplicable as a matter of law on
alternative theories of fraud, estoppel, acquiescence, waiver,
ratification, inconsistency in conduct, or partial performance.
In his brief counsel for Walker has cited a number of Kansas
decisions which have approached this statute of frauds question
from these various angles, using different terminology in
Principles of Law From Past Cases Dealing with Oral Contracts
The statute of frauds does not render the oral contract void. It
is valid for all purposes except that of suit. ( Weld v. Weld,
71 Kan. 622, 81 Pac. 183; Rice v. Randolph, 111 Kan. 73, 206
Since the contract is one which cannot be enforced, no action
for damages will lie for its breach. ( Fry v. Platt, 32 Kan. 62,
3 Pac. 781; Leis v. Potter, 68 Kan. 117, 121, 74 Pac. 622; Evans
v. Lynch, 200 Kan. 331, 436 P. 2d 867.)
The statute of frauds was enacted to prevent fraud and
injustice, not to foster or encourage it, and courts will, so
far as possible, refuse to allow it to be used as a shield to
protect fraud and as a means to enable one to take advantage of
his own wrong. ( Hazen v. Garey, 168 Kan. 349, 212 P. 2d 288;
Powell v. McChesney, 170 Kan. 692, 228 P. 2d 925.)
Where it is sought to enforce an oral contract for the sale of
an interest in real estate on the grounds that it has been
performed by the party seeking to enforce it, it must appear
that a failure to enforce would amount to a fraud against the
party. ( Jay v. Ellis,–5 Kan. 272, 10 P. 2d 840.)
Absent compelling equitable considerations an oral contract
within the statute of frauds will not be specifically enforced.
( Engelbrecht v. Herrington, 103 Kan. 21, 172 Pac. 715; Jay v.
Part performance of an oral contract will not take the case out
of statute where the performing party can be compensated in
[*321] money. ( Gates v. Syndicate Oil Corp.,–2 Kan. 272, 295
Pac. 649; Engelbrecht v. Herrington, supra.)
Payment of the purchase price alone is not sufficient part
performance to take a case out of the statute of frauds. Since
the money can be recovered back by action, no fraud will be
accomplished if the oral contract is not enforced. ( [***17]
Edwards v. Fry, supra; Engelbrecht v. Herrington, supra; Riffel
v. Dieter, 159 Kan. 628, 157 P. 2d 831.)
Delivery of possession of the land alone without the making of
improvements is not sufficient to take a case out of the
application of the statute of frauds. ( Baldridge v. Centgraf,
- §197 && §271A
In our judgment sections 197 and 217A of Restatement 2d,
Contracts (Tentative draft 1973), are
clear and direct statements of
the principles of law to be applied in determining whether or
not an oral contract should be removed from the application of
the statute of frauds and enforced by a court on equitable
They are based upon the equitable doctrine of reliance which is
the fundamental theory upon which all of our prior cases are
§ 197. Action in Reliance; Specific Performance.
contract for the transfer of an interest in land may be
notwithstanding failure to comply with the Statute of Frauds
If it is established that the party seeking enforcement,
in reasonable reliance on
the contract and
on the continuing assent
of the party against whom enforcement is sought,
has so changed his position
that injustice can be
avoided only by specific enforcement."
§ 217A. Enforcement by Virtue of Action in Reliance.
promise which the promisor should
reasonably expect to induce action or
forbearance on the
part of the promisee or a
third person and which does induce
the action or forbearance is
enforceable notwithstanding the
Statute of Frauds
If injustice can be avoided only by
enforcement of the promise.
The remedy granted for breach is to be limited as justice
In determining whether injustice can be avoided only by
enforcement of the promise, the following circumstances are
the availability and adequacy of
other remedies, particularly cancellation and
the definite and substantial
character of the action or
forbearance in relation to the remedy sought;
the extent to which the action or
forbearance corroborates evidence of the
making and terms of the promise,
or the making and terms are otherwise established by clear and
the reasonableness of the action or
forbearance and the
misleading character of the promise."
Determining the Results - Relationship, Misrepresentation,
- Equity does not require the removal of the statute of frauds
as a defense
We have concluded that under all the facts and circumstances
equity does not require the statute of frauds to be removed as a
defense to this action for specific performance of the oral
- no claim that there was any relationship of trust or
Here there is no claim that there was any relationship of trust
or confidence between the parties.
- no allegations or evidence of false misrepresentation
There are no allegations or evidence of false misrepresentation
of existing facts.
It was stipulated that the parties understood a written contract
was to be prepared.
Ireton simply refused to sign a written contract on four or five
- Never took possession, Made No Improvements
Although Walker made a $ 50 down payment he never took
possession of the land involved and made no improvements
Walker placed a hay rake on one of the pastures of the farm but
this could not be considered a delivery of possession of the
Whether or not these acts [$50 check, abstract expenses,
attorney expenses, sell of other farm] of reliance are
sufficient to require a court to remove the bar of the statute
Walkers Arg - Acts of Reliance
50 check as an installment on the purchase price,
Payment of a $ 36 abstract expense.
$ 75 attorney fee for an abstract examination.
The placing of a side-delivery hay rake on a pasture in
Walker sold a farm near Hedville which he had recently purchased
in reliance on Ireton's promise to sell his farm.
- Acts are not sufficient to justify specific reliance
Taken together they are not sufficient to justify specific
performance of the oral contract.
The fact that Walker sold another farm in expectation that the
Iretons would sell their farm to him does not justify specific
performance under the circumstances of the case.
- Purely Collateral Act
An act which is purely collateral to an oral contract,
although done in reliance on
such contract is not such a part
performance as to authorize the enforcement of the
contract by a court of equity.
Exception To Rule
Where the agreement was made to induce the collateral act or
Where the collateral act was contemplated by the parties as a
part of the entire transaction.
- Walker did not advise the Iretons of his intention to sell
Walker does not contend that he advised the Iretons of his
intention to sell the Hedville farm in advance of the sale.
- Iretons had no knowledge of sell until after it was sold
The Iretons had [no] knowledge concerning the sale of the
Hedville farm until after it had already been sold.
- Walker did not say he lost money on resale of farm
Furthermore, Walker does not contend at any place in the record
that he lost money on the resale of the Hedville farm to others.
- Sale of farm was a collateral matter not within the
contemplation of the parties
We consider the resale of the Hedville farm by Walker to others
as a matter wholly collateral to the Ireton contract and not
within the contemplation of the parties nor within the scope of
any understanding between Ireton and Walker.
Dunn v. Winans
There plaintiff vendee brought an action for specific
performance of an oral agreement to sell certain land.
The petition alleged the making of
some improvements on the property and further alleged
that plaintiff was damaged in the
amount of $ 300 for the sale of his home for the
purpose of carrying out the contract with the defendant.
Court - Denied specific performance, because part performance
Denied specific performance holding that there had not been
sufficient part performance to take the case out of the statute
Entitled to Recover - Improvements to Property
The vendee was entitled to recover the expenses which were
incurred by him for the improvements he made on the property.
NOT Entitled to Recover
Not permitted to recover damages on account of the sale of his
In This Case
Entitled To Recover
His $ 50 check
The cost of bringing Iretons' abstract up to date on the basis
of quantum meruit or unjust enrichment.
These expenditures were of benefit
to the Iretons and Walker
is entitled to restitution for these items.
NOT Entitled to Recover
Not entitled to be reimbursed for his $ 75 attorney fee in
obtaining a legal opinion.
The Iretons received no benefit
from this expenditure.
- Restitution is restrict to what benefitted the vendor
Where a vendee is denied specific performance under an oral
contract for the sale of land his right to
restitution is restricted to
expenditures or services which benefitted the vendor
on the basis of quantum meruit.
§ 217A Comment b
- Reliance must be foreseeable
Reliance of the promisee must be foreseeable by the promisor and
enforcement must be necessary to avoid injustice.
In this case equity and justice do not require specific
enforcement of the oral contract, nor do they require
reimbursement to Walker for the sale of the Hedville farm.