Stooksberry v. Pigg
290 S.W. 355
Ark.
1927
Check Treatment
Hart, J.,

(аfter stating the facts). Under the instructions of the court, to the effect that, if the jury should find that the plaintiff and the dеfendant entered into an oral agreement for the sale of the land described in the complаint, and the defendant took possession of the land under said oral agreement, the agreement became binding upon the defendant; and, if he failed to comply with the terms of the oral agreement, he was liable to plaintiff for damages for breach' of the contract. This instruction was erroneous.

This wаs an action to recover damages for the breach of an oral contract for the sаle of land. No part of the purchase price was paid, but, under the allegations of the cоmplaint, the defendant was in possession of the land under the oral contract. The defendant denied making the contract. Under our system of pleading, this was sufficient to let in the defense of the statute of frauds. Where the pleadings present the issue of an agreement or no agreement, the party relying upon the agreement ‍‌‌‌​​‌‌‌​​​​​‌​​‌​​​‌​​‌​‌‌‌‌‌​​‌‌‌​‌‌​‌‌​‌‌​‌​‌‍must prove a valid one. If the defendant had admitted that a verbal agreement for the sale of the land had been made as alleged by the plaintiff, then he must have specifically pleaded the statute of frauds in order to rely upon it. Having denied the oral agreement for the рurchase and sale of the land as alleged in the cómplaint, the statute of frauds became a question of fact at the trial, and it devolved upon the plaintiff to prove a valid agreement in order to recover. Cook v. Cave, 163 Ark. 407, 260 S. W. 49; and O’Bryan v. Zuber, 168 Ark. 613, 271 S. W. 347.

Among other things, § 4862 of Crawford & Moses’ Digest provides that no action shall be brought to charge аny person upon any contract for the sale of lands or to charge any person upon any lease of lands for a longer term than one year.

In Phillips v. Grubbs, 112 Ark. 562, 167 S. W. 101, the court held that a contract of lease for a period of five yéars is taken out of the statute of frauds when the lessee complies with its terms by paying rent for two, years and making ‍‌‌‌​​‌‌‌​​​​​‌​​‌​​​‌​​‌​‌‌‌‌‌​​‌‌‌​‌‌​‌‌​‌‌​‌​‌‍valuable improvements on the land. The court said that this holding is true of аn oral agreement to sell lands, and that the same principle controls a contract for the lease of lands.

In Storthz v. Watts, 117 Ark. 500, 175 S. W. 486, ” whiqh was an action at law, the court said that, in order to take an oral contract for the lease of lands ont of the statute of frauds, there must be substantial expenditures in the way of рerformance of the contract over and above the mere occupancy of the land and payment of rent for the period actually occupied. In discussing the question, the court sаid: “The only item of repairs specified is a trifling amount expended on the fence, which is too insignificаnt to be treated as a substantial performance of the contract. There is nothing more in the tеstimony, in the way of part performance, than occupancy for the first year and payment оf the rent for that year, which is not sufficient to take the case out of the operation of the stаtute. There must be substantial expenditures in the way of performance of the contract over and above the mere occupancy and payment for the period actually occupied. There is a difference between substantial part performance of a contract, whiсh takes it out of the operation of the statute, and partial execution, which does not havе that effect. Henry & Bro. v. Wells, 48 Ark. 485.” To the same effect is Newton v. Watkins, 340 Ark. 252, 215 S. W. 615.

In Beattie v. Smith, 146 Ark. 532, 226 S. W. 128, the court held that, where the vendor of standing- timber received payment and the рurchaser entered into possession, this took the contract ‍‌‌‌​​‌‌‌​​​​​‌​​‌​​​‌​​‌​‌‌‌‌‌​​‌‌‌​‌‌​‌‌​‌‌​‌​‌‍out of the statute of frauds, though it was oral. This was an action for the breach of an oral contract for the sale of timber.

In Carnahan v. Terrall Bros., 137 Ark. 407, 209 S. W. 64, the cоurt held that a contract for the sale of standing timber is within the statute of frauds, and that the doctrine of pаrt performance applicable to oral contracts for the sale of land applies to such contracts.

In Dunn v. Turner Hardware Co., 166 Ark. 520, 266 S. W. 954, it was held that mere occupancy of land and payment of the rent fоr the period occupied were not sufficient to take the case ‍‌‌‌​​‌‌‌​​​​​‌​​‌​​​‌​​‌​‌‌‌‌‌​​‌‌‌​‌‌​‌‌​‌‌​‌​‌‍out of the operаtion of the statute of frauds. There the court had under consideration an oral lease for five years.

Under these authorities, an action for damages for the breach of the contract sued оn cannot be maintained. As we have already seen, the contract for the sale of the land wаs an oral one, and no part of the purchase money was paid, and no valuable improvements were made under the contract. The only reliance of the plaintiff as a basis for his actiоn is that the defendant took possession of the land under the oral contract; and, as we have just seen, this was not sufficient to entitle him to maintain an action at law for damages for breach of the сontract.

It follows that the judgment must be reversed; and, inasmuch as the cause of action seems ‍‌‌‌​​‌‌‌​​​​​‌​​‌​​​‌​​‌​‌‌‌‌‌​​‌‌‌​‌‌​‌‌​‌‌​‌​‌‍to have been fully developed, the complaint of the plaintiff will be dismissed here.