Plаintiffs appeal from a summary judgment in favor of defendants. The trial court found that no binding agreement had been reached between the parties under an earnest money receipt and offer to purchase (the contract) and that defendants were entitled to the return of their earnest money deposit. We affirm.
On appeal from a summary judgment, we review the evidence in a light most favorable to the losing party.
Geneva Pipe Co. v. S & H Insurance Co.,
On August 16, 1983, defendants offered to purchase from plaintiffs property owned by plaintiffs in joint tenancy. The offer was accompanied by a $5,000 earnest money deposit and required plaintiffs to аccept within one day. Jodie Bennion, the real estate agent for plaintiffs, contacted them in California on August 17 and informed them of the terms and conditions of the offer. In response, Bennion received a telegram worded as follows:
I, Sam Williams, hereby authorize Jodie Bennion of Gump & Ayers Real Estate to accept an offer to sell my home located at 1040 East 1st Avenue Salt Lake City $205,000 all of thе terms acceptable.
(Signed) Samuel M. Williams.
*423 Bennion then accepted the offer by signing “Sam Williams by Jodie Bennion agent telegram attached.” Defendants decided not to purchase the property, and plaintiffs demanded that defendants’ earnest money deposit be forfeited to plaintiffs. Defendants refused, and this suit followed. In opposition to the motion for summary judgment by defendants, plaintiff Shelley Williams stated by affidavit that she had instructed her husband to accept the offer on her behalf and that Bennion had likewise been informed of her willingness to sell. The trial court ruled that Bennion had accepted the offer on behalf of Sam Williams only and that without Shelley Williams’ signature on the contract the accepted offer was unеnforceable under the statute of frauds. The court also held that Bennion had no authority to accept the offer on plaintiffs’ behalf as plaintiffs did not give her a written power of attorney to so act. Plaintiffs assign both those rulings as errors. Inasmuch as we hold that Shelley Williams’ failure to sign, either personally or through her agent, rendered the contract unenforceable, we do not reach the merits of the second issue.
Section 25-5-1 of our statute of frauds controls the creation of estates or interests in real property:
Nо estate or interest in real property, other than leases for a term not exceeding one year, nor any trust or power over or concerning real property or in any manner relating thereto, shall be created, granted, assigned, surrendered or declared otherwise than by act or operation of law, or by deed or conveyance in writing subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized by writing.
(Emphasis added.) Similar requirements govern contracts for leases and sales of lands. Section 25-5-3 provides:
Every contract for the leasing for a longer period than one year, or for the sale, of any lands, or any interest in lands, shall be void unless the contract, or some note or memorandum thereof, is in writing subscribed by the party by whom the lease or sale is to be made, or by his lawful agent thereunto authorized in writing.
(Emphasis added.)
A contract made by telegraph is deemed written under section 25-5-7, and an agent may sign for his or her principal, section 25-5-9, so long as the authority is given in writing.
Bradshaw v. McBride,
Plaintiffs advance several arguments in urging us to recognize Sam Williams’ acceptance on behalf of both plaintiffs as enforceable against defendants. They claim that Shelley Williams expressly authorized her husband and later expressly ratified that authorization to sell by approving and consenting to the filing of their complaint against defendants. They also claim that only the signature of the party to be charged is required on a contract and that the parties to be charged in this case were defendants. They conclude that in any event the offer here does not purport to create, grant, assign, or surrender an interest in real property and is therefore not a “conveyance” embraced by the statute of frauds.
Contrary to plaintiffs’ argument, an offer to purchase when accepted creates an interest in real estate and is within the
*424
statute of frauds. U.C.A., 1953, § 25-5-3,
supra; Coombs v. Ouzounian, supra; Knight v. Chamberlain,
Plaintiffs’ reliance on statutory language that “the party to be charged” in this case should be defendants is misplaced. That language does not appear in the sections pertinent to their situation. Section 25-5-3 specifically requires that the contract be “in writing subscribed by the party by whom the sale is to be made.” Certainly this section governing land contracts, as well as section 25-5-1 governing conveyances by deed, mandates expressly that a document to be enforceable under the statute of frauds must be subscribed by the party granting the conveyance.
LeVine v. Whitehouse,
Finally, plaintiffs may not use their joint complaint against defendants as a written ratification by Shelley of Sam’s acceptance. An offeror may restrict the manner of acceptance, provided his or her intention to do so is clearly expressed.
Cochran v. Connell,
This payment is received and offer is made subject to the written acceptance of the sеller endorsed hereon within one days from the date hereof and unless so approved, the return of the money herein receipted shall cancel this offer without damages to thе undersigned agent.
Shelley did not join or ratify in writing her husband’s acceptance within the one-day period. Where an offer has expired by lapse of time, an attempt to acсept is ineffectual to create a contract.
Morrison v. Rayen Investment, Inc.,
If ratification is relied upon in order to establish the authority of the agent, it must be in writing and executed prior to any effective renunciation by the lessee of the lease agreement. Otherwise, the defense of statute of frauds will be available only to the lessor, which result would be totally inconsistent with the requirement of mutuality of obligation of contrаcts and with the settled policy that either party may raise the defense of the statute of frauds.
Id.
A similar result is dictated here. Under the concept of mutuality of obligation, defendаnts could not have prevailed in enforcing a sale by plaintiffs, had Shelley’s failure to join in the acceptance within one day been the result of her refusal to sell.
Coombs v. Ouzounian, supra;
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Frandsen v. Gerstner,
Affirmed.