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Burgdorfer v. Thielemann - 153 Or. 354, 55 P.2d 1122 (1936)


A promise to pay, or to become obligated for the payment of money which is not to be or cannot be fully performed within one year from the making thereof is within the statute of frauds as much as a promise or agreement to do any other act.


Plaintiff Charles Burgdorfer filed a lawsuit in Oregon state court against defendant Carl Thielemann alleging deceit in the sale of land. Burgdorfer charged that by false representations and a false promise, Thielemann fraudulently induced Burgdorfer to exchange a note, and a mortgage securing it, together with two unsecured notes for certain lots of land. Specifically, Burgdorfer alleged that Thielemann represented to Burgdorfer that the lots had a present fair value of $ 2,400; that the tenant occupying the lots had made the Thielemann a recent offer of $ 2,200. Burgdorfer further claimed that Thielemann promised to assume and pay a $ 500 mortgage on the lots and save Burgdorfer harmless therefrom. After a trial, a jury rendered a verdict for Burgdorfer; judgment was entered on the verdict. Thielemann appealed, arguing that the alleged promise to assume and pay the mortgage could not have been performed in one year and, therefore, to be enforceable it had to be reduced to writing and signed by the party sought to be charged. 


Did the court properly rule in favor of the Burgdorfer?




The court held that in an action for deceit, the statute of frauds did not have the effect of rendering inadmissible testimony of an oral promise made with the fraudulent intent on the part of the promisor at the time the promise was made not to fulfill or perform the promise. Thielemann cited no case of fraud or deceit in which it was held that a promise to do something incapable of being performed in one year, when such promise was made with the intention of not performing it at all, could not be proved by oral testimony. Therefore, the court affirmed the trial court's judgment.


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