Malzer v. Schisler

Mr. Justice Eakin delivered the opinion of the court. Defendant makes but one point upon the appeal, namely, that the agreement of sale was in parol, and therefore that a promise by defendant to pay the $200 cannot be established. We understand the rule in such a case to be that where there is an oral agreement for the sale of land, and the property has been conveyed to the vendee, the agreement is so far executed that it is thereby taken out of the statute of frauds. In an action to recover the balance of the purchase price the agreement to pay may be shown by parol, including the consideration for the promise to pay. In 39 Cyc. 1918, it is stated: “As a general rule the statute of frauds is a good defense to an action by a vendor on an oral contract of sale of land to recover the purchase price, unless the deed has been executed and delivered to or accepted by the purchaser. A purchaser in possession under a contract for the title cannot resist payment of the purchase price on the ground that he did not sign the contract”: See, also, Walker v. Owen [358] 79 Mo. 563; Cagger v. Lansing, 43 N. Y. 550; King v. Smith, 33 Vt. 22. In 20 Cyc. 294, where many authorities are cited, it is said: “The statute is no bar to an action to recover for the price of land actually conveyed, where the deed has been accepted or title has otherwise passed, although the grantor could not have been compelled to convey, of the grantee accept a deed, because the contract was oral.” Defendant also suggests the point that the deed was not made to him, and that the property was not in his possession; but he made the contract of purchase and directed that the deed be made to Denny. Acceptance of the deed by Denny was acceptance by defendant. Plaintiff had no contract with Denny, and defendant’s liability on his contract for the price is the same as though the deed were to himself. Our Supreme Court assumes the existence of this rule, and, going further, holds that a promise to pay the price to a third party is also binding upon the vendee, and may be proved by parol: See Kiernan v. Kratz, 42 Or. 474 (69 Pac. 1027, 70 Pac. 506); Feldman v. McGuire, 34 Or. 309 (55 Pac. 872); Cooper v. Thomason, 30 Or. 161 (45 Pac. 296). And this question was also involved in McLeod v. Despain, 49 Or. 536 (124 Am. St. Rep. 1066, 90 Pac. 492, 92 Pac. 1088, 19 L. R. A. (N. S.) 276.) The judgment of the Circuit Court is affirmed. Affirmed.