Does this agreement have to be in writing in Nebraska, and is our writing enough?
Yes for six kinds of promise, and your writing is enough only if the party you are charging signed it and it states every essential term including the time for performance. Neb. Rev. Stat. § 36-202: “In the following cases every agreement shall be void, unless such agreement, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged therewith: (1) Every agreement that, by its terms, is not to be performed within one year from the making thereof; (2) every special promise to answer for the debt, default, or misdoings of another person; (3) every agreement, promise or undertaking made upon consideration of marriage, except mutual promises to marry; (4) every special promise by an executor or administrator to answer damages out of his own estate; and (5) every agreement for the repurchase of corporate stocks, bonds or other securities.” Land is separate: Neb. Rev. Stat. § 36-105 voids “Every contract for the leasing for a longer period than one year, or for the sale of any lands” absent a writing “signed by the party by whom the lease or sale is to be made”, and Neb. Rev. Stat. § 36-103 reaches any estate or interest in land “created, granted, assigned, surrendered, or declared”. DO NOT READ § 36-105's signature clause literally: Pallas v. Black takes up that reading and rejects it in one passage: “the vendor must sign any document which purports to be a memorandum of an agreement to sell real estate. That premise, however, is erroneous.”, and holds that “only the party to be charged need have signed the memorandum”; Brick Development v. CNBT II restates it: “Section 36-105 requires a signature by the party to be charged by the writing.” The one-year branch is narrow and turns on the terms alone: Bruce Lavalleur, P.C. v. Guarantee Group holds “Only an agreement that “by its terms” cannot be performed within 1 year is covered by § 36-202(1)”, and Rath v. Selection Research, Inc. puts it positively: “an oral agreement is valid under the statute of frauds if it is capable of being performed within 1 year from the date of making”, so “an oral employment contract with a work lifetime duration is valid” while “an oral employment contract with a 50-year duration is void”. The memorandum test is in David v. Tucker: “Generally, the memorandum should contain the names of the parties, a description of the land, the price, the general terms of the agreement, and the signature of the vendor”, and, the Nebraska oddity, “Ordinarily, time for performance is not an essential term of the contract, but it must be included in the memorandum to be enforceable.” Part performance is the escape, and Neb. Rev. Stat. § 36-106 confines it to the land sections: “Nothing contained in sections 36-103 to 36-106 shall be construed to abridge the powers of a court of equity to compel the specific performance of agreements in cases of part performance.”
The trap
Part performance does NOT reach § 36-202. The escape lives in § 36-106 and by its own words covers “sections 36-103 to 36-106” only, so a one-year, suretyship, marriage-consideration, executor's or STOCK-REPURCHASE agreement has no part-performance escape at all. McBride v. City of McCook is the worked example: five and a half months actually served under an eighteen-month oral municipal employment contract, and “part performance of services under an oral contract not to be performed in 1 year is not sufficient to remove the contract from the operation of the statute of frauds as to the part which is still executory, and an action may not be maintained for the breach of the entire contract.” Counsel who wins a land case on part performance and reaches for it on a services or guaranty contract loses. The suretyship branch has an escape of its own and it is not part performance: Christian v. Smith states that “under the leading object rule, a promise to answer for the debt of another will be valid, although not in writing, when the principal object of the party promising to pay the debt is to promote his own interests”, and that rule decided the case. Second trap, and it runs the opposite way from how § 36-105 reads: your own client's signature on a one-sided memo binds your client, and the counterparty's refusal to sign does not save you. Third: promissory estoppel is not a way out, and pleading reliance makes it worse. The rule comes from Farmland Service Coop, Inc. v. Klein, an oral corn sale decided under U.C.C. § 2-201 (a statute that is not among the law we hold), and the court stated it generally, saying in the same passage that the statute of frauds “applies to the enforcement of oral contracts except as otherwise provided by section 2-201, U.C.C.” Farmland holds that “promissory estoppel usually applies only in cases where there is a promise or representation as to an intended abandonment by the promisor of a legal right which he holds or will hold against the promisee”, and “[t]he mere pleading of reliance on the contract to his detriment should not be sufficient to permit a party to assert rights and defenses based on a contract barred by the statute of frauds.” Equitable estoppel is equally narrow: Brick Development limits it to the case where a party “induces another to waive some provision upon which he is entitled to insist”. Fourth: a facially complete memorandum still fails if it omits the TIME FOR PERFORMANCE, which is the Nebraska oddity (a term not essential to the contract is essential to the writing), and McBride adds that a writing omitting the salary “was not a sufficient memorandum to satisfy the statute because it did not contain the essential terms of the contract”. Fifth: performing for years does not put a contract INSIDE the one-year branch, and expectation is irrelevant; but writing a fixed term into a services or employment contract PUSHES IT IN, a work lifetime term is safe, while “an oral employment contract with a 50-year duration is void under the statute of frauds”, Rath adds that an oral employment contract “until age 65” would be void as well, and McBride's eighteen-month municipal contract was void. Sixth: accepting a deed signs it. Walters v. Sporer holds “the acceptance of a deed operates to satisfy the requirement, under § 36-103, that the contract creating an interest in land be signed by the party to be charged therewith”, and “in the absence of fraud, one who fails to read a contract cannot avoid the effect of signing.” Seventh: an agent's authority must itself be in writing under Neb. Rev. Stat. § 36-409, and that section does not list § 36-107, so the fix is unavailable for a broker's listing contract, which independently requires BOTH signatures and must set out the compensation on its face.
31 authorities
- statuteNeb. Rev. Stat. § 36-202enactment date not established
The words that state the rule
In the following cases every agreement shall be void, unless such agreement, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged therewith: (1) Every agreement that, by its terms, is not to be performed within one year from the making thereof; (2) every special promise to answer for the debt, default, or misdoings of another person; (3) every agreement, promise or undertaking made upon consideration of marriage, except mutual promises to marry; (4) every special promise by an executor or administrator to answer damages out of his own estate; and (5) every agreement for the repurchase of corporate stocks, bonds or other securities.
- statuteNeb. Rev. Stat. § 36-105enactment date not established
The words that state the rule
Every contract for the leasing for a longer period than one year, or for the sale of any lands, shall be void unless the contract or some note or memorandum thereof be in writing and signed by the party by whom the lease or sale is to be made.
- statuteNeb. Rev. Stat. § 36-103enactment date not established
The words that state the rule
No estate or interest in land, other than leases for a term of one year from the making thereof, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by operation of law, or by deed of conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same.
- statuteNeb. Rev. Stat. § 36-106enactment date not established
The words that state the rule
Nothing contained in sections 36-103 to 36-106 shall be construed to abridge the powers of a court of equity to compel the specific performance of agreements in cases of part performance.
- statuteNeb. Rev. Stat. § 36-107enactment date not established
The words that state the rule
Every contract for the sale of lands between the owner thereof and any broker or agent employed to sell the same, shall be void, unless the contract is in writing and subscribed by the owner of the land and the broker or agent. Such contract shall describe the land to be sold, and set forth the compensation to be allowed by the owner in case of sale by the broker or agent.
- statuteNeb. Rev. Stat. § 36-408enactment date not established
The words that state the rule
The consideration of any contract or agreement, required by the provisions of sections 36-103 to 36-106 and 36-202 to be in writing, need not be set forth in the contract or agreement or in the note or memorandum thereof, but may be proved by any other legal evidence.
The words that state the rule
Black’s argument is based in part upon the premise that the foregoing statutory language means that the vendor must sign any document which purports to be a memorandum of an agreement to sell real estate. That premise, however, is erroneous.
The words that state the rule
this court announced the rule that to authorize specific performance under a statute of frauds in all material respects identical to § 36-105, only the party to be charged need have signed the memorandum.
The words that state the rule
Section 36-105 requires a signature by the party to be charged by the writing.
The words that state the rule
We conclude that paying rent while in possession is not an exception to the requirement under the statute of frauds that an assumption of a lease for a period greater than 1 year must be in writing.
The words that state the rule
Equitable estoppel does not apply under the circum- stances. Only where a party to a written contract within the statute of frauds induces another to waive some provision upon which he is entitled to insist and thereby change his position to his disadvantage because of that party’s inducement will the inducing party be estopped to claim that such oral modification is invalid because not in writing.
The words that state the rule
Only an agreement that “by its terms” cannot be performed within 1 year is covered by § 36-202(1).
The words that state the rule
to determine whether an oral agreement falls within the 1-year provision, we consider only the terms of the agreement to decide whether the contract is “capable of being performed within 1 year” of its formation.
The words that state the rule
To state the rule in positive terms, an oral agreement is valid under the statute of frauds if it is capable of being performed within 1 year from the date of making.
The words that state the rule
Under the statute of frauds, an oral employment contract with a work lifetime duration is valid.
The words that state the rule
In contrast, unless an exception applies, an oral employment contract with a 50-year duration is void under the statute of frauds.
The words that state the rule
Generally, the memorandum should contain the names of the parties, a description of the land, the price, the general terms of the agreement, and the signature of the vendor.
The words that state the rule
Ordinarily, time for performance is not an essential term of the contract, but it must be included in the memorandum to be enforceable.
The words that state the rule
The description in the memorandum was sufficient to satisfy the statute of frauds and was subject to explanation and amplification by parol evidence.
The words that state the rule
The employment for 5y2 months was not sufficient part performance to permit enforcement of the oral contract for its full term. The general rule is that part performance of services under an oral contract not to be performed in 1 year is not sufficient to remove the contract from the operation of the statute of frauds as to the part which is still executory, and an action may not be maintained for the breach of the entire contract.
The words that state the rule
The advertisement was not a sufficient memorandum to satisfy the statute because it did not contain the essential terms of the contract, such as salary.
The words that state the rule
It applies to the enforcement of oral contracts except as otherwise provided by section 2-201, U.C.C. The position we take is that promissory estoppel usually applies only in cases where there is a promise or representation as to an intended abandonment by the promisor of a legal right which he holds or will hold against the promisee.
The words that state the rule
The mere pleading of reliance on the contract to his detriment should not be sufficient to permit a party to assert rights and defenses based on a contract barred by the statute of frauds.
The words that state the rule
Nevertheless, both statutes require a signature by the party to be charged by the writing.
The words that state the rule
We are persuaded by the great weight of authority that the acceptance of a deed operates to satisfy the requirement, under § 36-103, that the contract creating an interest in land be signed by the party to be charged therewith.
The words that state the rule
Further, in the absence of fraud, one who fails to read a contract cannot avoid the effect of signing.
The words that state the rule
In order to establish that an oral con- tract falls within the § 36-106 exception to the statute of frauds found in § 36-103, the proponent of the contract must establish by clear, satisfactory, and unequivocal evidence the terms of the contract, that the acts done in the performance thereof are referable solely to that contract, and that the acts performed are of such a nature that nonperformance of the contract by the other party would amount to a fraud upon the proponent.
The words that state the rule
under the leading object rule, a promise to answer for the debt of another will be valid, although not in writing, when the principal object of the party promising to pay the debt is to promote his own interestsand not to become a guarantor or suretyand when the promise is made on sufficient consideration.
- statuteNeb. Rev. Stat. § 36-409enactment date not established
The words that state the rule
Every instrument required by any of the provisions of sections 36-103 to 36-106 , 36-202 , and 36-402 to 36-409 to be subscribed by any party, may be subscribed by his agent thereunto authorized by writing.
The words that state the rule
And to the extent the refer- ence in Linscott to “facts” implies that evidence besides the terms of the contract bear on whether the contract “is not to be performed within one year,” we reject that implication.
The words that state the rule
For similar reasons, an oral employment contract “until age 65” would be void under the statute of frauds.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.