Steel v. Duntley

BISHOP, J.,

pro

tem.

Upon the second trial of this action, based on the breach by the vendor of a contract to sell real estate, the parties stipulated “that the only question at issue before the court was whether or not the escrow instructions of the respective parties . . . constituted an agreement in writing legally sufficient to satisfy the Statute of Frauds (sec. 1973, subd. 5, Code Civ. Proc.) ”. The trial court was satisfied that the statute had been complied with, and with this conclusion we agree.

One of appellant’s premises, advanced by counsel not now in the case, is that the writing required by the statute must be subscribed by the vendee, the plaintiff in this cause. This, is not the requirement of the law. The party to be charged is the only one who must sign, and in the situation before us that is the vendor (who did sign).

(Benson

v.

Shotwell,

(1890) 87 Cal. 49 [25 Pac. 249];

Cavanaugh

v.

Casselman,

(1891) 88 Cal. 543 [26 Pac. 515];

Easton

v.

Montgomery,

(1891) 90 Cal. 307 [25 Am. St. Rep. 123, 27

[453]

Pac. 280];

Cowan

v.

Tremble,

(1931) 111 Cal. App. 458 [296 Pac. 91]; see

Harper

v.

Goldschmidt,

(1909) 156 Cal. 245 [134 Am. St. Rep. 124, 28 L. R. A. (N. S.) 689, 104 Pac. 451].) In each of these eases there was a down payment made by the vendee, but this was not part performance taking the contracts out from the statute of frauds