George v. Cargo

YOUNG, J.

Roscoe George brought suit in the Wood Common Pleas against Hugh Cargo for breach of a contract growing out of an alleged purchase of part of a lot. George claimed he gave Cargo a check in part payment and on the following day in accordance with their agreement, tendered the balance of said purchase price but Cargo refused to accept same and tendered back the check and refused to execute and deliver a deed for the conveyance of the property.

Cargo contended that there was an oral contract and that the case comes within the statute of frauds requiring the contract to be in writing or some memorandum signed by the party to be charged. A demurrer to the amended petition of George was sustained and on error, the Court of Appeals held:

1. It is urged by George that the giving of the check as part consideration at the time of the agreement to purchase and sell is such a sufficient writing as not to come within the statute.

2. Although no particular form of language of instrument is necessary to- constitute a memorandum under the statute of frauds, it must state all the essential elements of the contract with reasonable certainty.

3. An essential element for sale and conveyance of real estate which must be stated is a description of the property conveyed.

4. Where the statute of fraud is set up as a bar, all oral contracts falling within its terms are affected; so that an action to recover damages for its breach cannot be maintained unless the benefits of the statute are waived or for some other legal cause.

5. There is no averment claiming that the check contained any memorandum as to the identity of the property; or to show that it was anything other than an ordinary check with endorsement in blank.

Judgment affirmed.