Bauer v. Monroe

Submitted March 21, 1945. 1. Statute of Frauds ? In issue without pleading. Where the making of an oral contract alleged in the complaint is put in issue by the answer, the defendant may avail himself of the statute of frauds without pleading it. 2. Contracts ? Alteration of written contract by executed agreement. The statutory rule that a contract in writing may be altered by a contract in writing, or by an executed oral agreement and not otherwise is not a rule of evidence but a rule of substantive law. 3. Appeal and Error ? Admission of testimony in violation of statute of frauds. Even though testimony in violation of the statute providing that a contract in writing may be altered by a contract in writing or by an executed oral agreement and not otherwise is admitted at the trial without objection, the testimony has no legal effect and it cannot be considered by the trial court or the appellate court. 4. Contracts ? Executed and executory contracts. An ""executed contract"" is one where nothing remains to be done by either party, while an ""executory contract"" is one in which a party binds himself to do or not to do a particular thing in the future. 5. Vendor and Purchaser ? Executory contract. A contract to sell land is an ""executory contract"" until the conveyance is made. 6. Vendor and Purchaser ? Subsequent alteration of contract. Where a contract for deed was in writing, there could be no subsequent alteration binding on the parties unless the subsequent alterations were in writing or by an executed contract. 7. Vendor and Purchaser ? Executory contract ineffectual to alter written contract. Where a formal written contract for deed had been entered into, an alleged oral agreement of the vendor to give the purchaser a deed if he would, among other things, give the vendor a home, was an ""executory contract"" and was ineffectual to alter the written contract for deed. 8. Witnesses ? Testimony of oral communications inadmissible. In an action against an administrator for specific performance of an alleged oral agreement of deceased to deed land to plaintiff, permitting plaintiff and his wife to give testimony concerning oral communications between plaintiff and deceased, was error. 9. Vendor and Purchaser ? Written agreement conclusive. Where plaintiff and deceased had entered into a formal written contract for deed to land, the plaintiff was concluded by the written agreement in absence of a subsequent contract in writing or executed oral contract covering the matter. 10. Specific Performance ? Evidence insufficient to establish right to specific performance. Where plaintiff and deceased had entered into a formal written contract for deed, the competent evidence, in action against deceased's administrator, was insufficient to establish that plaintiff was entitled to specific performance of an alleged subsequent oral executory contract for deed.