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Law School Case Brief

Schwedes v. Romain - 179 Mont. 466, 587 P.2d 388 (1978)


Claimed acts of partial performance sufficient to take an otherwise unenforceable contract out of the statute of frauds must be unequivocally referable to that contract.


Plaintiffs Lawrence and Billy Ann Schwedes filed a lawsuit in Montana state court against defendants Dorlaine A. Romain and LeRoy Mudgett ("Sellers") to obtain either specific performance of an alleged contract with Sellers for the sale of land or damages for breach of the contract for sale. The Sellers, after discovery, filed a motion for summary judgment, which the trial court granted. The Schwedes appeal from the summary judgment against them, and from the trial court's refusal to alter, amend, or cavate the summary judgment. The Schwedes claimed that there was a valid, enforceable contract for the sale of the land and that they were entitled to specific performance because they had partially performed the contract, which took it out of the statute of frauds.


Did the acts undertaken by the Schwedes in contemplation of eventual performance of the contract constitute part performance so as to remove the operation of the statute of frauds?




The state supreme court affirmed the trial court's judgment in favor of the Sellers. The court noted that the four essential elements of a contract were: legally capable parties, their consent, a lawful object, and consideration. There was no evidence that any consideration moved from the Schwedes to the Sellers. A mere oral promise to pay was not sufficient consideration to support a contractual obligation. There was no writing, memorandum, or note binding the Schwedes. Acts undertaken in contemplation of eventual performance of the contract did not constitute part performance to remove the operation of the statute of frauds. Where a case was clearly within the statute of frauds, promissory estoppel was inapplicable, therefore, the Sellers were not estopped to deny the validity of the contract. There was no evidence upon which the Schwedes could establish a valid, enforceable contract and they could not obtain specific performance.

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