Appeal from order of Court of Common Pleas of Montgomery County, No. 74-237, in case of Eastgate Enterprises, Inc. v. Bank and Trust Company of Old York Road.
Charles J. King, Jr., with him Rogers, King & Daniels, for appellant.
Philip D. Weiss, with him McTighe, Brown, Weiss, Bonner & Stewart, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. (Van der Voort, J., absent). Opinion by Spaeth, J.
[ 236 Pa. Super. Page 505]
This is an action in assumpsit to recover certain costs and attorney's fees, which appellant (as plaintiff) claims it was required to pay appellee (as defendant) under duress. The complaint alleges: that appellant and appellee orally agreed that appellant would pay $110,000 for a certain piece of land, and in return appellee would forbear foreclosing on a mortgage on the land; that "[a]s a result of the foregoing [oral agreement], and in reliance upon representations made by [appellee]," appellant "negotiated a cancellation" of an agreement to sell the land to Gino's for $125,000; that in violation of the oral agreement, appellee foreclosed on the mortgage; that as part of the foreclosure, appellee claimed costs and attorney's fees totaling $9,455.36, and refused to satisfy the mortgage until these were paid;*fn1 and that "[u]nder duress," appellant paid the costs and attorney's fees. Appellee filed preliminary objections in the form of a demurrer, pleading that the complaint failed to state a cause of action because "[t]he alleged oral agreement not to foreclose is unenforceable under the Statute of Frauds."*fn2 The objections were sustained, and the complaint was dismissed. This appeal followed.
[ 236 Pa. Super. Page 506]
The Statute of Frauds, Act of March 21, 1772, 1 Sm. L. 389, § 1, 33 P.S. § 1, provides that "no leases, estates or interests, either of freehold or terms of years, or any uncertain interest, of, in, to or out of any messuages, manors, lands, tenements or hereditaments, shall, at any time after the said April 10, 1772, be assigned, granted or surrendered, unless it be by deed or note, in writing, signed by the party so assigning, granting or surrendering the same, or their agents, thereto lawfully authorized by writing, or by act and operation of law."
Thus, "an oral contract to convey real estate or to change the title to real estate is a violation of the Statute of Frauds, . . ." Brinko v. Redden, 402 Pa. 408, 410, 167 A.2d 467, 468 (1961) (emphasis in original); Jermyn v. McClure, 195 Pa. 245, 45 A. 938 (1900); Lehner v. Montgomery, 180 Pa. Superior Ct. 493, 119 A.2d 626 (1956).
"The Statute of Frauds is not a rule of evidence, but a declaration of public policy . . . [It] does not absolutely invalidate an oral contract relating to land but is intended merely to guard against perjury on the part of one claiming under the alleged agreement." Schuster v. Pa. Turnpike Commission, 395 Pa. 441, 450-51, 149 A.2d 447, 451-52 (1959). Specific evidence that would make rescission of an oral contract inequitable and unjust will take the contract out of the Statute of Frauds, Croneberger v. Conrad, 248 Pa. 612, 615 (1915), as, for example, sufficient "part performance" or an admission by the defendant, either in his pleadings or at the trial, of the existence of the contract. Zlotziver v. Zlotziver, 355 Pa. 299, 49 A.2d 779 (1946). The reason for this rule is that such evidence reduces the chances of fraud and perjury and therefore the purpose of the statute is served. Lehner v. Montgomery, supra at 497, 500, 119 A.2d at 628, 630.
Here, there is no suggestion of such evidence. There is only the bare allegation of the oral agreement; the allegation about "negotiat[ing] a cancellation" of the agreement to sell to Gino's adds nothing, for the terms
[ 236 Pa. Super. Page 507]
of the negotiations are not alleged. Axe v. Potts, 349 Pa. ...