I.In General.

The statute of frauds set out in this section is a wise and salutary law, and should be fairly and fully carried into execution by the courts. Cutler v. Hinton, 27 Va. (6 Rand.) 509, 1828 Va. LEXIS 29 (1828) (see Wright v. Pucket, 63 Va. (22 Gratt.) 370 (1872); Plunkett v. Bryant, 101 Va. 814 , 45 S.E. 742 (1903)).

Its object is to prevent frauds and perjuries, and not to perpetrate them, and the statute is never enforced when by the effect of it a fraud and a wrong would be perpetrated. Wheat v. Wheat, 3 Va. L. Reg. (n.s.) 177, aff’d by divided court, 119 Va. 861 , 91 S.E. 827 (1916); T. v. T., 216 Va. 867 , 224 S.E.2d 148, 1976 Va. LEXIS 217 (1976).

It was not intended that the statute should perpetrate frauds. Its primary object is to prevent the setting up of pretended agreements and then supporting them by perjury. Wright v. Pucket, 63 Va. (22 Gratt.) 370, 1872 Va. LEXIS 26 (1872); Plunkett v. Bryant, 101 Va. 814 , 45 S.E. 742 , 1903 Va. LEXIS 92 (1903); Reynolds v. Dixon, 187 Va. 101 , 46 S.E.2d 6, 1948 Va. LEXIS 203 (1948).

The statute will not be applied when the result is to cause a fraud or perpetrate a wrong, because the object of the statute is to prevent frauds. Murphy v. Nolte & Co., 226 Va. 76 , 307 S.E.2d 242, 1983 Va. LEXIS 270 (1983).

And it manifests the policy of requiring certain contracts to be in writing. —

The statute manifests the policy of requiring contracts of an important nature, such as the sale and purchase of real estate, to be reduced to writing, since otherwise, from the imperfection of memory and the honest mistakes of witnesses, it often happens either that the specific contract is incapable of exact proof or that it is unintentionally varied from its original terms. Wright v. Pucket, 63 Va. (22 Gratt.) 370, 1872 Va. LEXIS 26 (1872); Plunkett v. Bryant, 101 Va. 814 , 45 S.E. 742 , 1903 Va. LEXIS 92 (1903); Reynolds v. Dixon, 187 Va. 101 , 46 S.E.2d 6, 1948 Va. LEXIS 203 (1948).

The purposes of this section are to provide reliable evidence of the existence and terms of certain types of contracts and to reduce the likelihood that contracts within the scope of this statute can be created or altered by acts of perjury or fraud. Lindsay v. McEnearney Assocs., 260 Va. 48 , 531 S.E.2d 573, 2000 Va. LEXIS 94 (2000).

Modification must also be in writing. —

When a contract is required to be in writing pursuant to this section, any modification of that contract must also be in writing and signed by the party to be charged or his agent. Lindsay v. McEnearney Assocs., 260 Va. 48 , 531 S.E.2d 573, 2000 Va. LEXIS 94 (2000).

This section deals only with the legal enforceability and not with the substantive validity of oral agreements which fall within its scope. Stein v. Pulaski Furn. Corp., 217 F. Supp. 587, 1963 U.S. Dist. LEXIS 7604 (W.D. Va. 1963).

This section is not concerned with the validity of the contract but merely with its enforceability. Brown v. Valentine, 240 F. Supp. 539, 1965 U.S. Dist. LEXIS 6979 (W.D. Va. 1965).

The statute is procedural or remedial in nature, and is concerned not with the validity of the contract, but with its enforceability. T. v. T., 216 Va. 867 , 224 S.E.2d 148, 1976 Va. LEXIS 217 (1976); Murphy v. Nolte & Co., 226 Va. 76 , 307 S.E.2d 242, 1983 Va. LEXIS 270 (1983).

The statute of frauds is concerned with the enforceability of contracts, not their validity. Because its object is to prevent fraud, it will not be applied when to do so would result in a fraud or perpetrate a wrong. Troyer v. Troyer, 231 Va. 90 , 341 S.E.2d 182, 1986 Va. LEXIS 168 (1986).

Under the parol evidence rule, the merger clause in guaranty agreements with the creditor bank precluded the introduction into evidence of alleged oral agreements between the creditor and the guarantors that would change the nature of the contract between the parties to advance funds and release certain property of the debtor. The statute of frauds was not applicable. Wachovia Bank, N.A. v. Dresdner (In re Brookland Park Plaza, LLC), No. 09-34495-KRH, No. 09-03164, 2009 Bankr. LEXIS 3241 (Bankr. E.D. Va. Oct. 13, 2009).

There is no prohibition in this section on the ability of third-party beneficiaries to sue upon oral contracts generally. To so hold would be to judicially amend the statute of frauds, an action the Supreme Court of Virginia declines to take. Thorsen v. Richmond SPCA, 292 Va. 257 , 786 S.E.2d 453, 2016 Va. LEXIS 68 (2016) (but see § 64.2-520.1 and notes thereunder).

And will not be applied to perpetrate a wrong. —

The statute of frauds is concerned with the enforceability of contracts, not their validity. Because its object is to prevent fraud, it will not be applied when to do so would result in a fraud or perpetrate a wrong. Troyer v. Troyer, 231 Va. 90 , 341 S.E.2d 182, 1986 Va. LEXIS 168 (1986).

It is procedural, or remedial, in nature. —

This section is procedural, or remedial, in nature and accordingly no action may be brought in this State on an oral contract of employment not to be performed within a year, regardless of its validity and enforceability in the jurisdiction where it was made. Stein v. Pulaski Furn. Corp., 217 F. Supp. 587, 1963 U.S. Dist. LEXIS 7604 (W.D. Va. 1963).

The effect of this section is only procedural. Hewitt v. Hutter, 574 F.2d 182, 1978 U.S. App. LEXIS 12858 (4th Cir. 1978).

Equitable estoppel will thwart the pleading of the statute of frauds in Virginia even without the showing of fraud or deceit. Nargi v. Camac Corp., 820 F. Supp. 253, 1992 U.S. Dist. LEXIS 21322 (W.D. Va. 1992).

To escape statute of frauds. —

The controlling principles are well settled. To escape the statute of frauds, the oral agreement must be definite, certain, and unequivocal in all its terms. Certainty means that each term is expressed in an exact manner; by contrast, uncertainty means that terms are expressed inexactly, indefinitely, and obscurely so that the intent is not ascertainable. Further, the acts the plaintiff relied on to establish part performance must be consistent with no theory other than the existence of an oral contract. Finally, the agreement must be so far executed that a refusal to require full execution would operate as a fraud upon the plaintiff. Beach v. Virginia Nat'l Bank, 235 Va. 376 , 367 S.E.2d 516, 4 Va. Law Rep. 2564, 1988 Va. LEXIS 64 (1988).

A valid oral contract may exist until avoided by the statute of frauds properly pleaded. That oral contract may be enforced if there is a sufficient memorandum in writing to satisfy the statute of frauds. Hewitt v. Hutter, 406 F. Supp. 976, 1975 U.S. Dist. LEXIS 15263 (W.D. Va. 1975).

A verbal promise to indemnify against loss caused by the erection of a milldam is not within the statute of frauds, and is valid and binding. Chapman v. Ross, 39 Va. (12 Leigh) 565, 1841 Va. LEXIS 58 (1841).

Oral agreement to pay decedent’s funeral expenses. —

Plaintiff alleged that the contract between herself and the defendant, wherein the defendant agreed to pay the decedent’s funeral expenses and debts, was oral, and therefore, this section applied to plaintiff’s claim. Law v. Law, 922 F. Supp. 1106, 1996 U.S. Dist. LEXIS 5778 (E.D. Va. 1996).

Any agreement or promise to lend money or extend credit in an aggregate amount of $25,000 or more must be in writing to be enforceable. Charles E. Brauer Co. v. NationsBank, 251 Va. 28 , 466 S.E.2d 382, 1996 Va. LEXIS 5 (1996).

II.Ratification of Infant’s Promise.

No particular form of words is necessary to constitute a ratification, after coming of age, of a contract made during infancy; but the words must import an unequivocal and unconditional recognition and confirmation of the previous engagement, though they need not amount to a direct promise to pay. The memorandum of writing must recognize the debt as binding on the person who signs it, and must, in express terms or by fair construction, refer to the contract to be ratified, and treat it as still subsisting. If, however, it be such a writing as would bind a principal, who was an adult, as a ratification of the act of a party acting as his agent, it will be sufficient. Ward v. Scherer, 96 Va. 318 , 31 S.E. 518 , 1898 Va. LEXIS 94 (1898).

A replication to a plea of infancy, in an action on a bond executed during infancy, that the obligor has ratified and acknowledged the bond in writing, after coming of age, is bad when the ratification relied on refers to an open account for a different amount from that of the bond sued on and there is nothing in it to show that the bond was given for the open account. Ward v. Scherer, 96 Va. 318 , 31 S.E. 518 , 1898 Va. LEXIS 94 (1898).

III.Promises by Personal Representatives.

Agent may bind principal. —

Virginia statutory and case law expressly allows an agent, by his own signature, to bind his principal to a contract covered by the statute of frauds. Hewitt v. Hutter, 406 F. Supp. 976, 1975 U.S. Dist. LEXIS 15263 (W.D. Va. 1975).

Parol promises held binding. —

A parol agreement by an executor to pay a legacy out of his own estate is not unenforceable, if a decree was previously obtained for the legacy to be satisfied out of certain property appointed by the testator, for part of which property the executor was accountable under the decree and responsible de bonis propriis, and such agreement was made in consideration of forbearance to enforce the decree. Patton v. Williams, 17 Va. (3 Munf) 59, 1811 Va. LEXIS 116 (1811).

A promise by an executor to pay for goods delivered to him for the use of his testator’s widow and legatees out of his testator’s estate, on proof that the assets were sufficient for that purpose, was held binding upon him in his individual capacity, although the promise was not in writing. Collins v. Row, 37 Va. (10 Leigh) 114, 1839 Va. LEXIS 22 (1839).

IV.Promise to Answer for Debt, Etc., of Another.

A.In General.

Purpose of statute. —

The clause of the statute relating to an agreement to answer for the debt of another contemplates a gratuitous verbal promise by one to pay a debt which he does not owe, and is not liable for, but which is owed by another; and the intent and purpose of the statute is to compel the reduction to writing of the evidence of such voluntary promise, for the protection, alike, of promisor and promisee from fraud. Skinker v. Armstrong, 86 Va. 1011 , 11 S.E. 977 , 1890 Va. LEXIS 80 (1890).

No shield against actual debt of promisor. —

The statute contemplates the mere promise of one man to be responsible for another, and cannot be interposed as a shield against the actual obligations of the promisor. Alessandrini v. Mullins, 178 Va. 69 , 16 S.E.2d 323, 1941 Va. LEXIS 145 (1941).

For the statute to apply it is essential that the oral promise be to perform the same duty or obligation which rests upon another person. In other words, the oral promisor must have undertaken to discharge the same obligation or debt which another person has undertaken to discharge. Planters Bank & Trust Co. v. Loe, 193 Va. 411 , 69 S.E.2d 455, 1952 Va. LEXIS 149 (1952).

Elements. —

With respect to a guaranty agreement, the statute of frauds requires that the nature and extent of the undertaking, including the promise to pay the debt of another, appear on the face of the writing or the agreement is not enforceable. These essential terms of the agreement must be obvious on the face of the writing without recourse to parol evidence. Janus v. Sproul, 250 Va. 90 , 458 S.E.2d 300, 1995 Va. LEXIS 78 (1995).

Agreement need not be shown. —

The statute does not require that a writing evidencing a promise to pay the debt of another shall show on its face the agreement between the parties in order to be valid, but only that the promise to answer for the debt of another, or some memorandum or note thereof, shall be in writing. Saunders v. Bank of Mecklenburg, 112 Va. 443 , 71 S.E. 714 , 1911 Va. LEXIS 103 (1911).

No request necessary. —

In order for the promise of one person to pay the debt of another to be binding, it is not necessary that it should be made at the request of the person whose debt the promisor assumes or at the request of the creditor. Colgin v. Henley, 33 Va. (6 Leigh) 85, 1835 Va. LEXIS 19 (1835).

Guarantee must be in writing. —

Because any action brought to impose liability for a guaranty agreement would seek to charge the purported guarantor upon a promise to answer for the debt of another, the statute of frauds requires that the agreement be in writing and signed by the guarantor. American Indus. Corp. v. First & Merchants Nat'l Bank, 216 Va. 396 , 219 S.E.2d 673, 1975 Va. LEXIS 304 (1975).

This section bars guaranties unless they are evidenced by a writing. Chas. H. Tompkins Co. v. Lumbermens Mut. Cas. Co., 732 F. Supp. 1368, 1990 U.S. Dist. LEXIS 3167 (E.D. Va. 1990).

Under this statute, where debtor made no written promises to pay creditor for the debt of another, creditor’s judgment could not be enforced. Neese v. Hollywood Video, Inc., 196 Bankr. 39, 1995 Bankr. LEXIS 2038 (Bankr. W.D. Va. 1995).

One who makes oral promise and is sole obligor may be estopped from invoking defense of statute of frauds, even though the statute is otherwise applicable. But to hold that a promisee, upon proof of reliance and detriment, could enforce an oral undertaking by a promisor who derives no direct benefit from the transaction and is only conditionally obligated to perform would effectually repeal subdivision 4. Colonial Ford Truck Sales, Inc. v. Schneider, 228 Va. 671 , 325 S.E.2d 91, 1985 Va. LEXIS 160 (1985).

No direct benefit to promisor. —

A subdivision 5 promisor receives a direct benefit as the quid pro quo of his promise, and he is the promisee’s sole obligor. A subdivision 4 promisor receives no direct benefit and is liable only if the debtor defaults. Colonial Ford Truck Sales, Inc. v. Schneider, 228 Va. 671 , 325 S.E.2d 91, 1985 Va. LEXIS 160 (1985).

As to ineffective attempt to impose limitation on promise to answer for the debt of another, see Richmond Eng'r & Mfg. Corp. v. Loth, 135 Va. 110 , 115 S.E. 774 , 1923 Va. LEXIS 5 (1923).

Essential element lacking. —

Letter did not contain the essential elements of the alleged underlying oral agreement, namely, signee’s personal promise to pay the debt of the corporation. The letter merely acknowledged that a commission would be paid. Janus v. Sproul, 250 Va. 90 , 458 S.E.2d 300, 1995 Va. LEXIS 78 (1995).

B.Consideration.

Consideration is necessary. —

The promise of one person to pay the debt of another, though in writing, must be founded on consideration to make it binding. Colgin v. Henley, 33 Va. (6 Leigh) 85, 1835 Va. LEXIS 19 (1835) (see Parker v. Carter, 18 Va. (4 Munf.) 273 (1814); Beers v. Spooner, 36 Va. (9 Leigh) 153 (1838)).

But need not be expressed in written promise. —

Under the statute the consideration need not be expressed in the written promise to pay the debt of another. Colgin v. Henley, 33 Va. (6 Leigh) 85, 1835 Va. LEXIS 19 (1835).

Plaintiff, in declaring on promise of defendant to pay the debt of another, alleged a particular consideration, but the written promise of defendant adduced in evidence contained no mention of the consideration. It was held that this was no variance between the allegata and probata, the written promise was proper evidence, and the consideration was provable by evidence aliunde. Colgin v. Henley, 33 Va. (6 Leigh) 85, 1835 Va. LEXIS 19 (1835).

Consideration must be a direct benefit to promisor. —

The kind of benefit that takes the promise out of the statute is one which the promisor receives or expects to receive when he makes the promise, resulting in an original, independent undertaking by the promisor. The consideration for the promise must be a direct benefit to the promisor and the primary object of making the promise, as distinguished from a benefit which is merely incidental, indirect or remote. Lawson v. States Constr. Co., 193 Va. 513 , 69 S.E.2d 450, 1952 Va. LEXIS 161 (1952).

Forbearance to enforce prior mortgage was held a sufficient consideration to support subsequent mortgagee’s promise to pay the debt of mortgagor secured thereby. Colgin v. Henley, 33 Va. (6 Leigh) 85, 1835 Va. LEXIS 19 (1835).

C.Original and Collateral Undertakings.

1.In General.

Original undertakings need not be in writing. They are not within subdivision 4 of this section. Alessandrini v. Mullins, 178 Va. 69 , 16 S.E.2d 323, 1941 Va. LEXIS 145 (1941); Lawson v. States Constr. Co., 193 Va. 513 , 69 S.E.2d 450, 1952 Va. LEXIS 161 (1952); Mid-Atlantic Appliances v. Morgan, 194 Va. 324 , 73 S.E.2d 385, 1952 Va. LEXIS 235 (1952).

But collateral promises must be in writing. —

Every collateral promise to answer for the debt, default or misdoings of another person, is within subdivision 4 of this section, and void if not in writing. Alessandrini v. Mullins, 178 Va. 69 , 16 S.E.2d 323, 1941 Va. LEXIS 145 (1941); Mid-Atlantic Appliances v. Morgan, 194 Va. 324 , 73 S.E.2d 385, 1952 Va. LEXIS 235 (1952).

No particular form of words is necessary to show original promise. —

In determining whether an alleged promise is or is not a promise to answer for the debt of another, no particular form of words is necessary to show an original promise or conclusion as to the intention of the parties, and the circumstances of each case must be taken into consideration. Southside Brick Works v. Anderson, 147 Va. 566 , 137 S.E. 371 , 1927 Va. LEXIS 324 (1927); Parksley Nat'l Bank v. Chandler, 170 Va. 394 , 196 S.E. 676 , 1938 Va. LEXIS 196 (1938); Alessandrini v. Mullins, 178 Va. 69 , 16 S.E.2d 323, 1941 Va. LEXIS 145 (1941); Lawson v. States Constr. Co., 193 Va. 513 , 69 S.E.2d 450, 1952 Va. LEXIS 161 (1952).

And the intention of the parties must govern in ascertaining to whom credit was extended so as to determine whether a promise is within subdivision 4 of this section. Southside Brick Works v. Anderson, 147 Va. 566 , 137 S.E. 371 , 1927 Va. LEXIS 324 (1927); Alessandrini v. Mullins, 178 Va. 69 , 16 S.E.2d 323, 1941 Va. LEXIS 145 (1941); Lawson v. States Constr. Co., 193 Va. 513 , 69 S.E.2d 450, 1952 Va. LEXIS 161 (1952).

The real character of the promise does not depend altogether upon the words or form of expression used, but largely upon the situation of the parties and what they mutually understood from the language, whether they understood the transaction to be a direct or a collateral promise. Lawson v. States Constr. Co., 193 Va. 513 , 69 S.E.2d 450, 1952 Va. LEXIS 161 (1952).

Whether an undertaking is collateral and governed by the statute of frauds or direct and exempt from the statute is not to be judged by the unilateral intent of the promisor but by the mutual understanding between the promisor and promisee. Colonial Ford Truck Sales, Inc. v. Schneider, 228 Va. 671 , 325 S.E.2d 91, 1985 Va. LEXIS 160 (1985).

In ascertaining to whom credit was extended, the intention of the parties governs. This intention is to be ascertained from the words used by the parties and all of the circumstances surrounding the transaction. The real character of the promise does not depend altogether upon the words or form of expression used, but largely upon the situation of the parties and what they mutually understood from the language, whether they understood the transaction to be a direct or a collateral promise. Colonial Ford Truck Sales, Inc. v. Schneider, 228 Va. 671 , 325 S.E.2d 91, 1985 Va. LEXIS 160 (1985).

Use of word “guaranteed.” —

While the use of the word “guaranteed” does not necessarily classify a promise as collateral, such use is strong evidence of the nature of the understanding in the absence of other controlling facts. Lawson v. States Constr. Co., 193 Va. 513 , 69 S.E.2d 450, 1952 Va. LEXIS 161 (1952).

Necessity for determination. —

If evidence taken shows that individual defendants, or any of them, affixed their signatures and seals to a lease with the intent to be bound by its terms, it must be determined whether the undertaking of the signers, or any of them, was a primary obligation, which would not be within the statute of frauds, or a collateral undertaking guaranteeing the performance of the obligations of the lessee, which would be within the statute of frauds and must be supported by a written promise. Caplan v. Stant, 207 Va. 933 , 154 S.E.2d 121, 1967 Va. LEXIS 158 (1967).

Undertaking is collateral if original contractor remains liable. —

If the original contractor remains liable and the undertaking of the third party is merely that of surety or guarantor, the undertaking is collateral and within the statute of frauds, even when the collateral promise was the principal inducement to performance by the promisee. Colonial Ford Truck Sales, Inc. v. Schneider, 228 Va. 671 , 325 S.E.2d 91, 1985 Va. LEXIS 160 (1985).

“Contract right” is a term that is both absorbed into the definition of “account,” and is used to define “general intangible.” It is impossible for the term to have a single meaning and be incorporated in both mutually exclusive categories. Dominion Bank v. Wilson, 86 Bankr. 871, 1988 U.S. Dist. LEXIS 4788 (W.D. Va. 1988), rev'd, 867 F.2d 203, 1989 U.S. App. LEXIS 1161 (4th Cir. 1989).

2.Undertakings Within the Statute.

Original indebtedness not discharged. —

If the original contractor remains liable and the undertaking of the new party is merely that of surety or guarantor, the undertaking of the latter is collateral and within subdivision 4 of this section. Noyes v. Humphreys, 52 Va. (11 Gratt.) 636, 1854 Va. LEXIS 49 (1854); Way v. Baydush, 133 Va. 400 , 112 S.E. 611 , 1922 Va. LEXIS 105 (1922); Alessandrini v. Mullins, 178 Va. 69 , 16 S.E.2d 323, 1941 Va. LEXIS 145 (1941); Lawson v. States Constr. Co., 193 Va. 513 , 69 S.E.2d 450, 1952 Va. LEXIS 161 (1952); Mid-Atlantic Appliances v. Morgan, 194 Va. 324 , 73 S.E.2d 385, 1952 Va. LEXIS 235 (1952).

Where G. in consideration of his debt to S. verbally promises to pay the debts of S. to W., but W. does not thereupon discharge S., the promise is a collateral undertaking which is void under the statute. Waggoner v. Gray, 12 Va. (2 Hen. & M.) 603, 1808 Va. LEXIS 69 (1808).

Where the consideration of a defendant’s undertaking to pay the debt of another is for money or property to be furnished to or received by a third person, if the transaction be such that the third person remains responsible to the person who furnishes him with such money or property, or from whom the consideration proceeds, such promise or undertaking is collateral, and under the statute of frauds will not bind the defendant, unless it be in writing. Ware v. Stephenson, 37 Va. (10 Leigh) 155, 1839 Va. LEXIS 26 (1839).

If no independent consideration is present, it is requisite that credit should be given exclusively to the promisor and, if any credit is given or any liability attaches to him for whose benefit the promise is made, the promise is collateral and within the statute, and this is so, although the collateral undertaking may have been the principal inducement to the delivery of the goods or the performance of the services. Lawson v. States Constr. Co., 193 Va. 513 , 69 S.E.2d 450, 1952 Va. LEXIS 161 (1952); Mid-Atlantic Appliances v. Morgan, 194 Va. 324 , 73 S.E.2d 385, 1952 Va. LEXIS 235 (1952).

A collateral undertaking to which subdivision 4 of this section applies is one in which the promisor is merely a surety or guarantor, receives no direct benefit, and is liable only if the debtor defaults. Langman v. Alumni Ass'n, 247 Va. 491 , 442 S.E.2d 669, 10 Va. Law Rep. 1248, 1994 Va. LEXIS 66 (1994).

Promise of sole beneficiary to pay debt of decedent. —

In a suit to subject real estate of a decedent to the payment of a debt due by him, defendant, who was executrix and sole beneficiary under the will, filed a plea of the statute of limitations. Complainant relied upon an oral statement made to him by defendant that “she would never see him lose anything and would never plead the statute of limitations against said note, and that she would pay it.” It was held that her promise was a promise to answer for the debt of another, upon which no action could be maintained unless it was in writing signed by the party to be charged. Soble v. Herman, 175 Va. 489 , 9 S.E.2d 459, 1940 Va. LEXIS 194 (1940).

A verbal promise by an agent to answer for the debt of his principal, being out of the line of his duty and unauthorized, is void; and even if authorized, being a purely collateral undertaking, the principal’s liability on the debt is not in any wise extinguished or reduced, and no action can be brought thereon under the statute. Engleby v. Harvey, 93 Va. 440 , 25 S.E. 225 , 1896 Va. LEXIS 94 (1896).

Where promises by individual stockholders to pay the debt of the corporation are collateral and not original, the creditor not releasing the corporation from its debt, no action can be brought on the promises unless they be in writing signed by the party to be charged thereby or his agent. Friedlin v. Crockin, 122 Va. 521 , 95 S.E. 432 , 1918 Va. LEXIS 117 (1918).

Promise to satisfy debts of corporation. —

Where a plaintiff’s complaint did not charge the defendant with an original undertaking in his individual capacity but rather, charged him with breaching a personal guaranty to satisfy the debts of his corporation, the personal guaranty was subject to the statute of frauds and the plaintiff was required to allege that the personal guaranty was in writing to state a claim upon which relief could be granted. Universal Test Equip., Inc. v. Heath, No. 3:99CV000103, 2000 U.S. Dist. LEXIS 15422 (W.D. Va. Oct. 20, 2000).

Agreement to pay merchant. —

If C. authorizes H. to say to a merchant, “that he, C., would pay for any goods sold to his son-in-law, L.,” or to any merchant of whom L. “might purchase,” or “might wish to purchase goods, that he would pay for L.” a certain sum, this is a collateral promise, and being verbal, is void under the statute. Cutler v. Hinton, 27 Va. (6 Rand.) 509, 1828 Va. LEXIS 29 (1828).

If the merchant charges the goods to L., the person to whom they are delivered, such entry in his books is strong evidence against him that he is dealing with L., and not with C., but, if the entry be against C., the promisor, such entry is not evidence for the merchant, so as to make that an original, which would have been otherwise a collateral, promise. Cutler v. Hinton, 27 Va. (6 Rand.) 509, 1828 Va. LEXIS 29 (1828).

Illustrative cases. —

Where corporate president agreed to assume voting control of corporation and pay plaintiffs’ account if a purchaser was not found for the corporation and plaintiffs agreed to withhold pending suit against corporation, president’s promise was not an original independent undertaking but was collateral and within the statute. Mid-Atlantic Appliances v. Morgan, 194 Va. 324 , 73 S.E.2d 385, 1952 Va. LEXIS 235 (1952).

Plaintiff’s claim against general contractor for rental of machinery leased to subcontractor was held barred by the statute of frauds where evidence did not support plaintiff’s claim that it was understood and agreed that the debt for the equipment was to be the debt of the general contractor and not the debt of the subcontractor and did not establish either a direct or a collateral promise by the general contractor to pay the plaintiff. Lawson v. States Constr. Co., 193 Va. 513 , 69 S.E.2d 450, 1952 Va. LEXIS 161 (1952).

3.Undertakings Not Within the Statute.

New consideration; novation of debt. —

Where the promise to pay the debt of another arises out of some new and original consideration, it is not within the statute of frauds. Cutler v. Hinton, 27 Va. (6 Rand.) 509, 1828 Va. LEXIS 29 (1828); Hopkins, Bro. & Co. v. Richardson, 50 Va. (9 Gratt.) 485, 1852 Va. LEXIS 10 (1852), overruled, Ely v. Gray, 125 Va. 708 , 100 S.E. 660 , 1919 Va. LEXIS 60 (1919); Noyes v. Humphreys, 52 Va. (11 Gratt.) 636, 1854 Va. LEXIS 49 (1854); Wright v. Smith, 81 Va. 777 , 1886 Va. LEXIS 142 (1886); Skinker v. Armstrong, 86 Va. 1011 , 11 S.E. 977 , 1890 Va. LEXIS 80 (1890).

Where there is a new and original consideration, and a novation of the debt, the promise to pay the debt of another is not within the spirit and letter of the statute. Hopkins, Bro. & Co. v. Richardson, 50 Va. (9 Gratt.) 485, 1852 Va. LEXIS 10 (1852), overruled, Ely v. Gray, 125 Va. 708 , 100 S.E. 660 , 1919 Va. LEXIS 60 (1919); Skinker v. Armstrong, 86 Va. 1011 , 11 S.E. 977 , 1890 Va. LEXIS 80 (1890) (citing Rosenbaum v. Goodman, 1883 Va. LEXIS 19, 78 Va. 121 (1883)).

A positive personal undertaking to pay for goods to be delivered to another is not within the statute of frauds. Kanter v. Hofheimer, 118 Va. 625 , 88 S.E. 60 , 1916 Va. LEXIS 46 (1916).

A parol agreement to pay for the board and lodging of a woman and her infant children for a certain time is enforceable, although her husband is bound to furnish her and the children with necessaries, and the promisor is not morally or legally bound but by his said promise. Lanier v. Harwell, 20 Va. (6 Munf) 79, 1818 Va. LEXIS 9 (1818).

Oral agreement between bank and purchaser to finance construction of house was held separate and independent of contract between purchaser and builder and was based on a different but valuable consideration, thus was not within the statute of frauds. Planters Bank & Trust Co. v. Loe, 193 Va. 411 , 69 S.E.2d 455, 1952 Va. LEXIS 149 (1952).

Oral promise of owner of building to pay for material and labor held an original promise and not within the statute. Alessandrini v. Mullins, 178 Va. 69 , 16 S.E.2d 323, 1941 Va. LEXIS 145 (1941).

Owner’s promise to pay materialman held enforceable. See Kramer Bros. Co. v. Powers, 195 Va. 131 , 77 S.E.2d 468, 1953 Va. LEXIS 183 (1953).

A promise made by one surety or indorser to another, whereby the promisee is induced to indorse or become cosurety, is not within the statute of frauds. Edmondson v. Ballard, 149 Va. 798 , 141 S.E. 776 , 1928 Va. LEXIS 392 (1928).

A promise by a surety that he will indemnify another if he will become cosurety with him on the debt of a third person is an original undertaking and not within the statute. Alphin v. Lowman, 115 Va. 441 , 79 S.E. 1029 , 1913 Va. LEXIS 55 (1913).

Such a promise held to be an original undertaking was in the following words: “Go ahead and indorse it; you need not be uneasy; Gillespie (the principal) is all right. If he did not have a thing, you will never have a dollar to pay as long as I have got a dollar’s worth of property.” Alphin v. Lowman, 115 Va. 441 , 79 S.E. 1029 , 1913 Va. LEXIS 55 (1913).

Indorsement secured by promisor who failed to indorse. —

1. induced B. to indorse the negotiable paper of a corporation of which A. was the secretary-treasurer and B. the president, by a promise that he would also personally indorse the obligation if B. would do so. This A. failed to do. It was held that A.’s promise to indorse the paper if B. would, was not a promise to answer for the debt or default of another, but a primary obligation to B., becoming enforceable as soon as B. sustained the loss which A. had agreed to share with him. Edmondson v. Ballard, 149 Va. 798 , 141 S.E. 776 , 1928 Va. LEXIS 392 (1928).

An agreement by a bank to discount notes with certain collateral, and to carry the loans until a third party can sell the collateral at a stated price and pay the notes from the proceeds, is an original undertaking on the part of the bank, and need not be in writing, although the discount is a part of a scheme on the part of such third person to defraud the makers. Baker v. Berry Hill Mineral Springs Co., 109 Va. 776 , 65 S.E. 656 , 1909 Va. LEXIS 95 (1909).

Promise to pay part of purchase money to another. —

A. and B., who were jointly indebted, conveyed lands to a trustee to secure the debt. Upon default, the land of B. was conveyed to C., who agreed to pay to A. the amount in excess of his share which he had paid. It was held that this was not a promise to answer for the debt of another, but a promise in consideration of the land to pay part of the purchase money to A. instead of to the trustee. Hence, such promise was not within the statute. Skinker v. Armstrong, 86 Va. 1011 , 11 S.E. 977 , 1890 Va. LEXIS 80 (1890).

Assignment of bond. —

R. assigns the bond of G. to K. to enable K. to purchase goods on the credit of his assignment, and guarantees the payment of the bond, by the endorsement on the back thereof, signed with his name. K. purchases goods of H. on the credit of that assignment and guarantee. This is not an undertaking for the debt of another to which the statute will apply. Hopkins, Bro. & Co. v. Richardson, 50 Va. (9 Gratt.) 485, 1852 Va. LEXIS 10 (1852), overruled, Ely v. Gray, 125 Va. 708 , 100 S.E. 660 , 1919 Va. LEXIS 60 (1919).

In a suit to enforce distribution of the estate of a former bank president, the bank asserted as claims certain notes and bonds which, while not endorsed by decedent, were presented by him to the bank for discount, the proceeds of which were placed to his credit, and the interest on which was paid by him from time to time. Decedent stated to the bank directors and the bank examiners that the obligations were his and that the bank was to be saved harmless, although there was no written guaranty to that effect. Defendant contended that the estate was not liable, since, under the statute of frauds, written evidence was necessary to bind one for the debt of another. It was held that the transactions were primarily for decedent’s benefit, and the enforcement of the claims against the estate was not barred by the statute of frauds. Parksley Nat'l Bank v. Chandler, 170 Va. 394 , 196 S.E. 676 , 1938 Va. LEXIS 196 (1938).

Secondary insurer which promised to contribute $15,000.00 to settlement of two claims with a potential recovery value in excess of both primary and secondary insurers’ coverage limits was not promising to answer for a debt owed by primary insurer, as when the agreement was made, only the potential of a debt existed. Horace Mann Ins. Co. v. GEICO, 231 Va. 426 , 344 S.E.2d 906, 1986 Va. LEXIS 209 (1986).

Transaction not within statute. —

Chapter 7 debtor’s motion to dismiss an adversary complaint was overruled on the ground that the underlying transaction was not, as the debtor had claimed, an oral guarantee that was void under the statute of frauds in subdivision 4 of § 11-2 because the creditor’s complaint, which was to be viewed in the light most favorable to the creditor, did not allege that that the debtor was a guarantor but that the creditor had loaned money to the debtor as the primary obligor, in which case subdivision 4 of § 11-2 would not apply. Nor did subdivision 9 of § 11-2 apply because it appeared to provide a defense only to lenders who have made an unwritten promise to extend credit of $25,000 or more and did not appear to provide a defense to a debtor who had already borrowed $25,000 or more under an unwritten agreement. Burke v. Marsh (In re Marsh), No. 07-10738-RGM (), No. 07-01080-RGM, 2007 Bankr. LEXIS 3130 (Bankr. E.D. Va. Sept. 12, 2007).

V.Agreements Upon Consideration of Marriage.

In general. —

This section embraces antenuptial contracts. Hannon v. Hounihan, 85 Va. 429 , 12 S.E. 157 , 1888 Va. LEXIS 52 (1888).

A verbal promise before marriage to make a gift of personal property to a daughter in consideration of the marriage cannot be enforced by the husband, either against the father or the creditors; and if voluntarily executed by the father after the marriage, is void against all existing creditors. Any other rule would supersede the statute of frauds. However, a verbal gift under such circumstances, when delivery is made prior to the marriage, is valid against the creditors. Hayes v. Jones (1857).

Parol promise sustaining written agreement. —

A parol promise by a father to his daughter’s husband before the marriage, is a sufficient consideration to sustain a written agreement made after the marriage, if such written agreement be otherwise sufficient under the statute of frauds. So also, if the marriage be had on the father’s request. Argenbright v. Campbell, 13 Va. (3 Hen. & M.) 144, 1808 Va. LEXIS 82 (1808).

Subsequent marriage not part performance. —

A parol agreement that certain property should go to the survivor of the marriage is void. In the absence of fraud or any agreement to reduce the settlement to writing, there can be no departure from the rule of subsequent marriage not being such part performance as will take the case out of the statute. Hannon v. Hounihan, 85 Va. 429 , 12 S.E. 157 , 1888 Va. LEXIS 52 (1888).

Ordinarily marriage is not such part performance as will take a case out of the statute. T. v. T., 216 Va. 867 , 224 S.E.2d 148, 1976 Va. LEXIS 217 (1976).

But detrimental reliance may give rise to contract. —

Where, in reliance on husband’s promise to marry her and care for a child not his own, an expectant mother irrevocably changed her plans for employment and adoption, and there was substantial performance by both husband and wife under the agreement for more than four years, a court of equity will avoid the statute of frauds and enforce the oral agreement even to the extent of requiring the husband to pay child support after a judgment of divorce is granted. T. v. T., 216 Va. 867 , 224 S.E.2d 148, 1976 Va. LEXIS 217 (1976).

Creation of parol trust. —

This section has no application to the creation by parol of a trust in favor of a wife in property acquired by her husband as a result of the marriage, in the absence of a showing that the agreement was based on the consideration of marriage. Riggan's Adm'r v. Riggan, 93 Va. 78 , 24 S.E. 920 , 1896 Va. LEXIS 54 (1896).

VI.Contracts Relating to Land.

A.In General.

The purpose of subdivision (6a) (now subdivision 7) of this section is to prevent fraud, not to protect the perpetrators of it. H-B Ltd. Partnership v. Wimmer, 220 Va. 176 , 257 S.E.2d 770, 1979 Va. LEXIS 251 (1979).

The legislative objective in enacting subdivision (6a) (now subdivision 7) of this section requiring real estate services agreements and contracts to be in writing was to avoid frauds and perjuries, not to act as a bar to action by principals against their agents for fraud or breach of confidence. H-B Ltd. Partnership v. Wimmer, 220 Va. 176 , 257 S.E.2d 770, 1979 Va. LEXIS 251 (1979).

Subdivision (6a) (now subdivision 7) of this section was intended to protect the public from unscrupulous real estate agents and brokers, not to act as a shield behind which agents and brokers could seek refuge when their principals charge them with fraud or breach of faith. H-B Ltd. Partnership v. Wimmer, 220 Va. 176 , 257 S.E.2d 770, 1979 Va. LEXIS 251 (1979).

Subdivision (6a) (now subdivision 7) of this section was intended to protect the public from unscrupulous real estate agents and brokers, and is not applicable to employment contracts between a realtor and his agent that provide for compensation based upon sales of real estate. Kay v. Professional Realty Corp., 222 Va. 348 , 281 S.E.2d 820, 1981 Va. LEXIS 313 (1981).

Virginia courts are very stringent in their adherence to the statute of frauds, and allow the rule which requires a contract for the sale of land to be in writing, to be varied by parol agreements only under exceptional circumstances. Wheat v. Wheat, 3 Va. L. Reg. 177 (see Moyer v. Ellis, 167 Va. 213 , 188 S.E. 151 , 1936 Va. LEXIS 295 (1936).

But there are exceptions to the rule, and under certain conditions the statute is set at naught, and the parol agreement established as the contract of the parties. Wheat v. Wheat, 3 Va. L. Reg. 177 (see Moyer v. Ellis, 167 Va. 213 , 188 S.E. 151 , 1936 Va. LEXIS 295 (1936).

A parol contract for the sale of land is unenforceable at law, even though it be a well defined and concluded agreement. Blow v. Maynard, 29 Va. (2 Leigh) 29, 1830 Va. LEXIS 9 (1830); Perry v. Ruby, 81 Va. 317 , 1886 Va. LEXIS 99 (1886); Dunsmore v. Lyle, 87 Va. 391 , 12 S.E. 6 10 , 1891 Va. LEXIS 82 (1891); Brown v. Pollard, 89 Va. 696 , 17 S.E. 6 , 1893 Va. LEXIS 89 (1893).

And an action for its breach does not lie. —

An action for damages cannot be sustained for the breach of a parol contract for the conveyance of land, because of the bar of the statute of frauds. Lloyd v. Smith, 150 Va. 132 , 142 S.E. 363 , 1928 Va. LEXIS 301 (1928).

Mere oral declarations to divest title are inadmissible because parol disclaimers cannot affect a vested title. Suttle v. Richmond, F. & P.R.R., 76 Va. 284 , 1882 Va. LEXIS 31 (1882).

An owner of land may by parol authorize another to make a contract for its sale; and if a contract be made under such authority, the owner of the lands may be charged by virtue of the contract, provided there be a memorandum thereof in writing, signed by the person authorized to make it. Yerby v. Grigsby, 36 Va. (9 Leigh) 387, 1838 Va. LEXIS 24 (1838).

No writing is necessary to create a good equitable title to real estate. The statute has no bearing on parol gifts of land founded on meritorious consideration. Halsey v. Peters, 79 Va. 60 , 1884 Va. LEXIS 60 (1884).

And parol trusts are not forbidden. —

The statute of frauds does not forbid the creation of a parol trust in lands. Daniel v. Viar, 147 Va. 323 , 137 S.E. 526 , 1927 Va. LEXIS 305 (1927).

Sale of land at auction. —

A case involving sale of land at auction was decided without reference to the statute of frauds, where the applicability of the statute was not raised as an issue in the case. Hoffman v. Horton, 212 Va. 565 , 186 S.E.2d 79, 1972 Va. LEXIS 209 (1972).

Foreclosure sale. —

Borrowers’ claim for equitable relief to set aside a foreclosure sale failed; while the alleged promises would have been improper, such alleged oral promises could not serve as a basis to set aside a foreclosure sale of real property because, under the statute of frauds, oral promises and contracts affecting real property were not enforceable. McFadden v. Fannie Mae, 525 Fed. Appx. 223, 2013 U.S. App. LEXIS 10067 (4th Cir. 2013).

Oral contract for sale of real estate was unenforceable unless evidenced by written memorandum containing the essentials of the oral contract. A cover letter and an unexecuted contract for sale setting forth the terms of the sale was sufficient where those terms were accepted by an authorized agent’s signature on the cover letter. The letter could be found to be a confirmation of the existing oral contract for the sale of real estate and, together with the referenced unexecuted contract for sale, contained all the essentials of the contract. Hewitt v. Hutter, 406 F. Supp. 976, 1975 U.S. Dist. LEXIS 15263 (W.D. Va. 1975).

Oral agreement as to division of land was unenforceable despite memorandum. —

Purported oral agreement to divide real property was unenforceable because of the statute of frauds, where a memorandum of understanding prepared by an attorney did not describe the boundaries which were to be adjusted, and the attorney had no authority to bind the parties to the memorandum. Gibbens v. Hardin, 239 Va. 425 , 389 S.E.2d 478, 6 Va. Law Rep. 1646, 1990 Va. LEXIS 51 (1990).

Oral agreement for sale of real estate. —

Where debtors in a Chapter 7 bankruptcy purportedly sold property to a purchaser prior to the bankruptcy filing pursuant to an oral agreement, although the debtors and the purchaser produced several documents to support the existence of their contract, the parties never recorded their transaction for the property, and the bankruptcy court determined that the oral, unrecorded contract was invalid; thus, pursuant to 11 U.S.C.S. § 544(a)(3) the trustee took legal title to the property, but the purchaser had an equitable interest in the property in the form of a constructive trust in the amount of $31,600.00 — the amount the purchaser had paid towards the sales price. Lubman v. Wells, 296 Bankr. 728, 2003 Bankr. LEXIS 884 (Bankr. E.D. Va. 2003).

Foreclosure sale of house before grantor declared bankruptcy was complete at the fall of the hammer accepting the bid and was complete even without a memorandum. In re Cole, 88 Bankr. 763, 1988 Bankr. LEXIS 2615 (Bankr. E.D. Va. 1988).

Modification of brokerage agreement required to be in writing. —

Because the written contract that a purchaser executed with a real estate broker fell within the scope of this section, that contract could not be orally modified and, in the absence of a written modification, the contract was to be enforced according to its terms. Lindsay v. McEnearney Assocs., 260 Va. 48 , 531 S.E.2d 573, 2000 Va. LEXIS 94 (2000).

B.Nature of Property.

“Land” includes everything belonging or attached to it, above and below the surface. It includes the minerals buried in its depths or which crop out of its surface. It equally includes the woods and trees growing upon it. Stuart v. Pennis, 91 Va. 688 , 22 S.E. 509 , 1895 Va. LEXIS 66 (1895) (see § 1-13.12.).

Timber. —

Independently of statute (§§ 59.1-103 through former 59.1-116 of this Code), a contract for the sale of growing trees, which are to remain upon the land for a time for the purpose of further growth and profit, is a contract for the sale of an interest in land, and must be proved by a writing. But if the trees are to be severed immediately, or within a reasonable or convenient time, with a mere license to enter and take them away, without any stipulation for the beneficial use meanwhile of the soil, it is a sale of goods, and need not be in writing. Hurley v. Hurley, 110 Va. 31 , 65 S.E. 472 , 1909 Va. LEXIS 113 (1909); Hurricane Lumber Co. v. Lowe, 110 Va. 380 , 66 S.E. 66 , 1909 Va. LEXIS 154 (1909).

The effect of §§ 59.1-103 through former 59.1-116 is to take a contract for the sale of standing timber branded in accordance with the provisions of these sections out of the operation of the statute of frauds. Hurley v. Hurley, 110 Va. 31 , 65 S.E. 472 , 1909 Va. LEXIS 113 (1909).

A contract for the sale of timber designated as to size and character upon specified tracts of land with the usual milling rights and privileges to cut and remove the timber at the convenience of the purchaser at any time within a period of more than three years constitutes a sale of real estate within the meaning of this section. Hundley v. Hulber, 201 Va. 847 , 114 S.E.2d 738, 1960 Va. LEXIS 169 (1960).

Structure removed from lot. —

Under § 8.2-107(1) , the real estate statute of frauds, § 11-2(6) , rather than the Uniform Commercial Code (UCC) statute of frauds, § 8.2-201(1) , applied to a contract for the sale of a model home because the model home was a structure and the alleged contract provided that a buyer was to remove the home from a builder’s display lot. Although the UCC statute of frauds did not apply, the buyer’s action for breach of an oral contract would have been barred under either statute of frauds because the buyer conceded that there was no writing that qualified under either statute and the buyer did not show that the builder admitted that a contract was made. Baker v. Jim Walter Homes, Inc., 438 F. Supp. 2d 649, 2006 U.S. Dist. LEXIS 49028 (W.D. Va. 2006).

C.Nature of Contract.

Contract of purchase or sale. —

1. empowers C. to purchase lands for him; M. empowers B. to sell lands for him, with directions to give C. a refusal. A. informs B. that he and C. are the same person, and offers, saying if M. will not take that price he will give more than any other person. B. promises C. and A. a refusal; but afterwards, without informing M. of their offers, purchases for himself. It was held that as the transactions between A., C. and B. were not in writing, B. may plead the statute of frauds. Buck v. Copland, 6 Va. (2 Call) 218, 1800 Va. LEXIS 9 (1800).

Subdivision 6 of this section renders parol contracts for the sale of real estate voidable only and not void. Hurley v. Hurley, 110 Va. 31 , 65 S.E. 472 , 1909 Va. LEXIS 113 (1909).

The statute of frauds does not make a parol contract for the sale of lands void, but affects only the remedy thereon. Dupuy v. Delaware Ins. Co., 63 F. 680, 1894 U.S. App. LEXIS 2992 (C.C.D. Va. 1894).

Where a development company and its president sought specific performance of a purported contract for the sale of land, the statute of frauds prohibited the enforcement of the purported oral contract because: (1) there was no written and signed contract between the parties; (2) the parties never mutually agreed to all the essential terms of a contract for the sale of the land; (3) one property owner did not act as the agent of the other property owners; and (4) equitable estoppel and part performance were inapplicable. Moorman v. Blackstock, Inc., 276 Va. 64 , 661 S.E.2d 404, 2008 Va. LEXIS 76 (2008).

Real estate brokerage contract subject to statute. —

The written contract that a purchaser executed with a real estate broker fell within the scope of this section because the contract was an agreement for services to be performed in the sale of real estate by a real estate broker and a real estate salesperson. Lindsay v. McEnearney Assocs., 260 Va. 48 , 531 S.E.2d 573, 2000 Va. LEXIS 94 (2000).

Real estate brokerage contract not subject to statute. —

Because there was a contract for the sale of real property that contained the essential terms of the parties’ real estate brokerage agreement, such contract removed the oral real estate brokerage agreement entered into between the parties from the operation of the statute of frauds under § 11-2 . C. Porter Vaughan, Inc. v. DiLorenzo, 279 Va. 449 , 689 S.E.2d 656, 2010 Va. LEXIS 33 (2010).

Contract to lease. —

Defendants verbally agreed with the plaintiff that if he would dig a tunnel and find ore, they would, upon finding the ore, make him a lease for five years. It was held that this contract was within the provisions of the statute and had to be in writing. Matthews v. Hileman, 11 Va. L. Reg. 46 (1905).

Completed lease. —

Subdivision 6 of this section deals with an agreement for a lease and not with a completed lease, and is not applicable to a present demise coupled with possession. Smith v. Payne, 153 Va. 746 , 151 S.E. 295 , 1930 Va. LEXIS 267 (1930).

Lease assignment valid. —

Assignment of a skilled nursing facility lease to the first lease assignee was valid and lawful because it satisfied the statute of frauds, as there was evidence of the existence of a written memorandum containing the essential terms of the assignment contract and it was signed by the party to be charged. Elderberry of Weber City, LLC v. Living Ctrs. - Southeast, Inc., 971 F. Supp. 2d 575, 2013 U.S. Dist. LEXIS 127167 (W.D. Va. 2013), aff'd in part, vacated in part, 794 F.3d 406, 2015 U.S. App. LEXIS 12559 (4th Cir. 2015).

Grant of interest in land. —

An oral promise by the owner of land to give an interest therein to one who contributes money to build a house thereon is within the statute. Walker v. Tyler, 94 Va. 532 , 27 S.E. 434 , 1897 Va. LEXIS 104 (1897).

Parol extension of written agreement. —

There being a written agreement, on the sale of land, that the purchaser shall search for coal, under the direction of the vendor for a limited time, and that if within that time coal be found in a sufficient body to work, the purchaser shall pay an augmented price for the land, a parol agreement, varying the written agreement by extending the time within which the search may be continued (and consequently obliging the purchaser to pay the augmented price), is within the statute of frauds, and will not be enforced by a court of equity. Heth v. Woolridge, 27 Va. (6 Rand.) 605, 1828 Va. LEXIS 44 (1828).

Contract with subvendee. —

A parol contract by which a vendee of land agrees to sell a portion of it to a subvendee, though assented to by the vendor, is within the statute of frauds and is unenforceable. Hoover v. Baugh, 108 Va. 695 , 62 S.E. 968 , 1908 Va. LEXIS 86 (1908).

An oral promise to devise real estate is not enforceable under the statute of frauds. Ricks v. Sumler, 179 Va. 571 , 19 S.E.2d 889, 1942 Va. LEXIS 249 (1942); Clay v. Clay, 196 Va. 997 , 86 S.E.2d 812, 1955 Va. LEXIS 169 (1955).

An agreement to dispose of realty by will in a particular way is subject to the provisions of this section. Hale v. Hale, 90 Va. 728 , 19 S.E. 739 , 1894 Va. LEXIS 54 (1894).

The statute of frauds has been repeatedly held to apply to contracts for the testamentary disposition of real estate. Hill v. Luck, 201 Va. 586 , 112 S.E.2d 858, 1960 Va. LEXIS 133 (1960).

Adjudication of constructive trust resulting from fraud of real estate agent. —

Subdivision (6a) (now subdivision 7) of this section did not prevent the plaintiffs from seeking an injunction to prevent a real estate agent from disposing of a parcel of land and an adjudication that the agent held the parcel as constructive trustee for the benefit of the plaintiffs, where the plaintiffs alleged that the agent breached his agency relationship by misrepresenting the price of the property, by taking title to the property in his own name, by refusing to convey it to them for the price he paid for it, and by attempting to make a secret profit at their expense, all in violation of his fiduciary duties. H-B Ltd. Partnership v. Wimmer, 220 Va. 176 , 257 S.E.2d 770, 1979 Va. LEXIS 251 (1979).

Contract for commission on construction of home. —

The words used in this section plainly do not encompass a building that is unattached to land and, therefore, an oral contract between an agent and a builder providing for a sales commission is not subject to the statute of frauds when that contract is based on the sale of a house to be affixed to land that does not include a contemporaneous sale of the land to which the house will be attached. Pardoe & Graham Real Estate, Inc. v. Schulz Homes Corp., 259 Va. 398 , 525 S.E.2d 284, 2000 Va. LEXIS 44 (2000).

Sales at auction in general are within the statute of frauds. Brent v. Green, 33 Va. (6 Leigh) 16, 1835 Va. LEXIS 10 (1835).

A personal contract of indemnity which does not run with the land is not within the statute of frauds, and, though merely verbal, is valid and binding. Chapman v. Ross, 39 Va. (12 Leigh) 565, 1841 Va. LEXIS 58 (1841).

A dedication of land to the public need not be made in writing so as to make it valid, as it is not a case falling within the statute of frauds. Skeen v. Lynch, 40 Va. (1 Rob.) 186, 1842 Va. LEXIS 22 (1842).

Judicial sales made by chancery courts through their commissioners are not within the statute of frauds, and are binding upon the bidder or purchaser without any written contract or memorandum of sale signed by him, or his agent. Robertson v. Smith, 94 Va. 250 , 26 S.E. 579 , 1897 Va. LEXIS 70 (1897).

Statute does not apply to permission to enter property. —

Developer and the principal did not prove that the agreement required more than the grant of a license to enter the property, to which the statute of frauds did not apply. Therefore, the circuit court erred in sustaining their plea in bar on the breach of contract claim because there was no evidence to support the claim that it was barred by the statute of frauds. Station # 2, LLC v. Lynch, 280 Va. 166 , 695 S.E.2d 537, 2010 Va. LEXIS 64 (2010).

D.Partnerships and Joint Ventures.

Contract of partnership for dealing in real estate. —

A partnership for the purchase and sale of real estate for speculation, the profits to be divided between the partners, is valid when verbally made, and the existence of the partnership and the extent of the interests of the partners may be shown by parol. Miller v. Ferguson, 107 Va. 249 , 57 S.E. 649 , 1907 Va. LEXIS 33 (1907); Burgwyn v. Jones, 113 Va. 511 , 75 S.E. 188 , 1912 Va. LEXIS 65 (1912).

A contract of partnership for dealing in an option in coal lands is not within the statute of frauds so as to prevent recovery by one partner from the other of his share of the profits. Williams v. Hendrick, 105 Va. 791 , 54 S.E. 865 , 1906 Va. LEXIS 87 (1906).

An agreement to become interested in and to share profits from lands already owned by one partner at the time the partnership is formed is an agreement for the purchase and sale of an interest in real estate, and within the statute requiring the same to be in writing. Burgwyn v. Jones, 113 Va. 511 , 75 S.E. 188 , 1912 Va. LEXIS 65 (1912).

Contract to market land. —

A realty company, engaged in developing, subdividing and selling tracts of land for customers, entered into a verbal contract to market a tract of land in this manner at its own expense. It was to be reimbursed for such expense out of the first proceeds of sale, the owner then to receive a fixed sum out of the proceeds and the residue produced by such sale to be divided equally between them. It was held that the contract was not one providing for a sale of an interest in real estate and was not required to be in writing under this section. Atlantic Coast Realty Co. v. Townsend, 124 Va. 490 , 98 S.E. 684 , 1919 Va. LEXIS 141 (1919) (see Atlantic Coast Realty Co. v. Robertson, 240 F. 372 (4th Cir. 1917)).

An oral partnership agreement among individuals for the purpose of acquisition and development of real property for profit is valid and not within the statute of frauds. Wingate v. Coombs, 237 Va. 501 , 379 S.E.2d 304, 5 Va. Law Rep. 2220, 1989 Va. LEXIS 78 (1989).

Agreement to admit third person as partner. —

The statute applies to an agreement between a purchaser of land, and a third person, that such third person should be admitted as a partner in the purchase; the proof of such agreement being only parol evidence of subsequent declarations and acknowledgments by the parties. Henderson v. Hudson, 15 Va. (1 Munf) 510, 1810 Va. LEXIS 77 (1810); Walker v. Herring, 62 Va. (21 Gratt.) 678, 1872 Va. LEXIS 83 (1872).

Agreement as to division of land. —

Where there is a joint purchase of land by two, to whom it is conveyed, and who give their bond for the purchase price, they are prima facie entitled to equal parts of the land and parol evidence is not admissible to prove an agreement between them for an unequal division. If there was any such understanding it is void by the statute of frauds and perjuries. Jarrett v. Johnson, 52 Va. (11 Gratt.) 327, 1854 Va. LEXIS 26 (1854), overruled in part, Wingate v. Coombs, 237 Va. 501 , 379 S.E.2d 304, 5 Va. Law Rep. 2220, 1989 Va. LEXIS 78 (1989).

Partnership interests are personalty whatever the nature of the partnership assets and a limited partnership interest is not barred by the statute of frauds even if the partnership’s sole asset is real property. Forward v. Beucler, 702 F. Supp. 582, 1988 U.S. Dist. LEXIS 14811 (E.D. Va. 1988).

VII.Agreements Not to Be Performed Within Year.

In general. —

Subdivision 7 (now subdivision 8) of the statute applies to contracts which show affirmatively that the performance thereof is postponed beyond the period of one year, and it does not apply to such contracts as may or may not be performed within that period. Seddon v. Rosenbaum, 85 Va. 928 , 9 S.E. 326 , 1889 Va. LEXIS 107 (1889); Thomas v. Armstrong, 86 Va. 323 , 10 S.E. 6 , 1889 Va. LEXIS 44 (1889); Richmond Union Passenger Ry. v. Richmond, F. & P.R.R., 96 Va. 670 , 32 S.E. 787 , 1899 Va. LEXIS 118 (1899); Budowitz v. Commonwealth, 136 Va. 227 , 118 S.E. 238 , 1923 Va. LEXIS 81 (1923).

As to distinction between “an agreement that is not to be performed within a year” and “an agreement which is not to be defeated within a year,” see Seddon v. Rosenbaum, 85 Va. 928 , 9 S.E. 326 , 1889 Va. LEXIS 107 (1889).

A writing is not needed so long as the contract can be performed within a year, even if only by some improbable event. Frazier v. Colonial Williamsburg Found., 574 F. Supp. 318, 1983 U.S. Dist. LEXIS 13968 (E.D. Va. 1983).

Detrimental reliance/promissory estoppel assertion. —

Although under this section, an agreement which cannot be performed within one year is unenforceable unless it is in writing and signed by the party to be charged, a party may assert equitable estoppel against a statute of frauds defense, even in the absence of actual fraud, if he can prove “that the person to be estopped has misled another to his prejudice ... or that the innocent party acted in reliance upon the conduct or misstatement by the person to be estopped.” Tidewater Beverage Servs., Inc. v. Coca Cola Co., 907 F. Supp. 943, 1995 U.S. Dist. LEXIS 18532 (E.D. Va. 1995).

A contract that may be performed on either side within one year is not within the statute of frauds. Reed v. Gold, 102 Va. 37 , 45 S.E. 868 , 1903 Va. LEXIS 102 (1903) (see Thomas v. Armstrong, 86 Va. 323 , 10 S.E. 6 (1889); Greenbrier Farms v. Clarke, 193 Va. 891 , 71 S.E.2d 167 (1952)).

In other words, the agreement must contemplate nonperformance by both parties within the year in order to fall within subdivision 7 (now subdivision 8) of the statute. And deferred payments do not change the situation. Smith v. Payne, 153 Va. 746 , 151 S.E. 295 , 1930 Va. LEXIS 267 (1930); Greenbrier Farms v. Clarke, 193 Va. 891 , 71 S.E.2d 167, 1952 Va. LEXIS 199 (1952).

Oral agreement under which plaintiff agreed to give defendant cuttings and grafts from plaintiff’s prized camellia bush for the purpose of growing and marketing plants therefrom and defendant agreed to pay a royalty or commission on each plant was not within subdivision 7 (now subdivision 8) of this section as one not to be performed within a year. Greenbrier Farms v. Clarke, 193 Va. 891 , 71 S.E.2d 167, 1952 Va. LEXIS 199 (1952).

Oral modifications had to be in writing. —

Partners and former partners’ assertion that the parties orally modified their written agreement did not sufficiently raise an issue that precluded summary judgment to the partnership as to liability on its claims, arising from the allegedly unlawful withdrawal of partnership funds, as any oral modifications were not valid or enforceable under both Virginia and Mississippi law because the original contract had to be in writing due to the time of performance. Three Rivers Landing of Gulfport, L.P. v. Three Rivers Landing, LLC, No. 7:11-cv-00025, 2013 U.S. Dist. LEXIS 144038 (W.D. Va. Oct. 2, 2013).

Termination by operation of law absent provision for full performance. —

Where the plaintiff’s employment contract would terminate by operation of law upon the plaintiff’s death or resignation, and it would terminate by breach upon his discharge for cause, because the plaintiff’s contract contained no provision providing for full performance in the event of those contingencies within one year, the statute of frauds was applicable. Falls v. Virginia State Bar, 240 Va. 416 , 397 S.E.2d 671, 7 Va. Law Rep. 843, 1990 Va. LEXIS 136 (1990).

Party must rely on own acts of part performance. —

A party seeking to avoid the bar of the statute of frauds must rely upon his own acts of part performance rather than the conduct of others, and the acts relied on as part performance must be consistent with no theory other than the existence of the alleged oral contract. Said differently, those acts must be such as could be done with no other view or design than to perform the agreement. Williams v. Heller Bros. Realty, 229 Va. 55 , 326 S.E.2d 661, 1985 Va. LEXIS 172 (1985).

Executed contract of lease. —

Plaintiff alleged that defendant leased urban storeroom by written lease for a period of two years from March 6, 1924, at a rental of $200.00 per month for the first year and $225.00 per month for the second year, and that in August, 1926, it was verbally agreed between the parties that the tenant should continue to occupy the storeroom in question at the monthly rental of $200.00 per month until March 6, 1929. It was held that this contract was a lease and not an agreement for lease, and being an executed contract, was not affected by subdivision 7 (now subdivision 8) of the statute. Smith v. Payne, 153 Va. 746 , 151 S.E. 295 , 1930 Va. LEXIS 267 (1930).

When an agreement is to be performed upon a contingency, and it does not appear within the agreement that it is to be performed after the year, then writing is not necessary, for the contingency may happen within the year. If by its terms, or by reasonable construction, a contract not in writing can be fully performed within a year, although it can be done only by the occurrence of some improbable event, such as the death of the person referred to, it is not within the statute. Thomas v. Armstrong, 86 Va. 323 , 10 S.E. 6 , 1889 Va. LEXIS 44 (1889).

An agreement to leave a person a support after the death of the promisor in consideration of services to be rendered by the promisee during the balance of the promisor’s life, full performance of the contract being dependent upon a contingency that may happen within a year, is not within the statute. Thomas v. Armstrong, 86 Va. 323 , 10 S.E. 6 , 1889 Va. LEXIS 44 (1889).

When it appears by the whole tenor of an agreement not in writing that it is to be performed after the first year, then the contract is within the statute and must be in writing. But when by its terms, or by reasonable construction, such a contract can be fully performed on one side within a year, although it can be done by the occurrence of some improbable event, as the death of the person referred to, the contract is not within the statute and need not be in writing. Silverman v. Bernot, 218 Va. 650 , 239 S.E.2d 118, 1977 Va. LEXIS 302 (1977).

Where the parties expressly delineated the duration of an employment contract in terms of the life of the employer, i.e., agreeing upon the limitation as one of the terms of the agreement, the contract was not within the “infra annum” provision of this section and did not have to be in writing, since the death of the employer could have occurred within the first year of the agreement. Silverman v. Bernot, 218 Va. 650 , 239 S.E.2d 118, 1977 Va. LEXIS 302 (1977).

Hypothetical analysis. —

Oral agreement between travel agencies did not fall within the statute of frauds because, applying the undisputed facts under the hypothetical analysis required by Silverman v. Bernot , 239 S.E.2d 118 (Va. 1977), it was possible for plaintiff to fully perform its obligations under the oral contract within one year of the contract’s formation. Blue Sky Travel & Tours, LLC v. Al Tayyar, 606 Fed. Appx. 689, 2015 U.S. App. LEXIS 5166 (4th Cir. 2015).

A parol contract of partnership without any fixed time for its continuance, and the business of which may be completed within a year, is not void as coming within the statute. Jordan v. Miller, 75 Va. 442 , 1881 Va. LEXIS 26 (1881).

A contract to erect and maintain a gate at a railroad crossing and to provide a keeper thereof, is not within the statute of frauds although no time is fixed within which it is to be performed. A change of circumstances surrounding the parties might at any time have determined the contract, and so the contract might have been performed within a year. Richmond Union Passenger Ry. v. Richmond, F. & P.R.R., 96 Va. 670 , 32 S.E. 787 , 1899 Va. LEXIS 118 (1899).

A contract to sell stock at the end of three years, with an option to the purchaser to call it at any time, may be performed within a year and is not required to be in writing signed by the party sought to be charged. Seddon v. Rosenbaum, 85 Va. 928 , 9 S.E. 326 , 1889 Va. LEXIS 107 (1889).

Employment contract subject to statute of frauds. —

If an employment contract is terminable only for cause, it is one for a fixed period, and, therefore, it is subject to one of the provisions of the statute of frauds. Graham v. Central Fid. Bank, 245 Va. 395 , 428 S.E.2d 916, 9 Va. Law Rep. 1200, 1993 Va. LEXIS 54 (1993).

An oral agreement between employee and his superiors in the company that as long as he performed his duties satisfactorily, he would be afforded job security was unenforceable under this section. Sullivan v. Snap-On Tools Corp., 708 F. Supp. 750, 1989 U.S. Dist. LEXIS 3157 (E.D. Va. 1989), aff'd, 896 F.2d 547, 1990 U.S. App. LEXIS 1022 (4th Cir. 1990).

Because the possibility of a termination of a contract for cause within its first year of performance did not remove it from the requirements of the statute of frauds, the oral assurances alleged by employee could not be considered in deciding whether she had an employment contract that could be terminated only for cause. Graham v. Central Fid. Bank, 245 Va. 395 , 428 S.E.2d 916, 9 Va. Law Rep. 1200, 1993 Va. LEXIS 54 (1993).

Agreement to pay bonus. —

Virginia’s statute of frauds, subdivision 8 of § 11-2 , barred a former employee’s recovery from his former employers for breach of contract because an oral promise regarding the basis of a certain bonus was within the scope of the statute of frauds because, by its nature, it could not have been performed within a year. Albanese v. WCI Cmtys., Inc., 530 F. Supp. 2d 752, 2007 U.S. Dist. LEXIS 95827 (E.D. Va. 2007).

A contract for personal services which is not to be performed within a year, or some memorandum thereof, must be in writing. Rahm v. Klerner, 99 Va. 10 , 37 S.E. 292 , 1900 Va. LEXIS 117 (1900).

Where an oral contract was entered into prior to January 1, for one year’s service from that date, and the terms of the contract were “gone over again” in January at which time the “arrangement” theretofore made was discussed, and the final terms were then agreed upon and confirmed by both parties, the contract was not within the statute of frauds. Knox Stove Works v. Wall, 180 Va. 267 , 23 S.E.2d 161, 1942 Va. LEXIS 165 (1942).

Commencing in futuro. —

Where defendant, by parol, employed plaintiff in August for one year’s service, to commence in October, the contract is not enforceable, the statute of frauds being pleaded. Lee v. Hill, 87 Va. 497 , 12 S.E. 1052 , 1891 Va. LEXIS 100 (1891).

Holding over under former contract. —

A servant was employed under a written contract for one year, and afterward continued in his employment from year to year without any other contract in writing until his discharge. It was held that his contract for the year in which he was discharged was the ordinary case of a contract for one year’s service to begin and be performed within the year, and consequently not within the statute of frauds. Conrad v. Ellison-Harvey Co., 120 Va. 458 , 91 S.E. 763 , 1917 Va. LEXIS 131 (1917).

An agreement to furnish room and board for a 15-month period is not within the statute because it is terminable upon the death of the one to whom the room and board is furnished, an event which might occur within a year. Glasgow v. Peatross, 201 Va. 43 , 109 S.E.2d 135, 1959 Va. LEXIS 191 (1959).

And an agreement to lodge and board for a 15-month period is not within the statute because it is terminable upon the death of the other party which might occur within a year. Glasgow v. Peatross, 201 Va. 43 , 109 S.E.2d 135, 1959 Va. LEXIS 191 (1959).

Agreement regarding division of decedent’s estate complied with subdivision 7 (now subdivision 8) of this section, where both the first letter to the first party and the letter to the attorney for the party to be charged stated the terms of the agreement and were signed, and the party to be charged also signed their draft of the agreement, which was accepted by the first party. Penick v. Dekker, 228 Va. 161 , 319 S.E.2d 760, 1984 Va. LEXIS 184 (1984).

Express trust in personalty. —

Subdivision 7 (now subdivision 8) of this section is not applicable to an express parol trust in personalty, the duties of which are not to be completely performed within a year. Russell v. Passmore, 127 Va. 475 , 103 S.E. 652 , 1920 Va. LEXIS 65 (1920).

An oral “just cause” employment contract is unenforceable under the statute of frauds because it is incapable of being performed within a year. Termination for just cause is not performance pursuant to this section. Windsor v. Aegis Servs., Ltd., 691 F. Supp. 956, 1988 U.S. Dist. LEXIS 9003 (E.D. Va. 1988), aff'd, 869 F.2d 796, 1989 U.S. App. LEXIS 3543 (4th Cir. 1989).

Agreement to produce cable television programming. —

A verbal agreement pursuant to which the plaintiff would produce programming of a local cable television channel for a term of 10 years and the defendant would pay the plaintiff $2000 per month was an agreement that could not be performed within a year and, therefore, the agreement was barred by the statute. Int'l Network, Ltd. v. Adelphia Communs. Corp., No. 2:01CV00019, 2001 U.S. Dist. LEXIS 18002 (W.D. Va. Nov. 5, 2001).

Agreement to pay defendants’ attorneys’ fees. —

Under subdivision 8 of § 11-2 , the statute of frauds did not bar enforcement of an alleged oral contract concerning an employer’s advancement of defendants’ attorneys’ fees because it was conceivable that the prosecution of defendants could have ended within a year. Furthermore, the employer’s part performance of the contract by advancing fees for several months removed the alleged oral contract from the statute of frauds. United States v. Rosen, 487 F. Supp. 2d 721, 2007 U.S. Dist. LEXIS 34388 (E.D. Va. 2007).

VIII.The Writing.

A.In General.

A sufficient written memorandum of the transaction acts to remove the bar placed on certain oral contracts. Brookfield Centre Ltd. Partnership v. CFS Mgt. Co., 135 Bankr. 23, 1991 Bankr. LEXIS 1899 (Bankr. E.D. Va. 1991).

When the bar is removed it is the oral contract which is subject to enforcement not the memorandum. Brookfield Centre Ltd. Partnership v. CFS Mgt. Co., 135 Bankr. 23, 1991 Bankr. LEXIS 1899 (Bankr. E.D. Va. 1991).

The object of the memorandum required by the statute is to protect the party to be charged hereby, not third persons. Matthews v. LaPrade, 130 Va. 408 , 107 S.E. 795 , 1921 Va. LEXIS 162 (1921).

Statute of frauds requires a writing and signature only “by the party to be charged,” thus, in this case, the sales contracts became binding against the purchasers upon the purchasers’ signing. Long v. Merrifield Town Ctr. L.P., 611 F.3d 240, 2010 U.S. App. LEXIS 14300 (4th Cir. 2010).

The memorandum need not be formal but may be made in any form. Reynolds v. Dixon, 187 Va. 101 , 46 S.E.2d 6, 1948 Va. LEXIS 203 (1948).

It need not itself constitute a contract. —

The memorandum relied on need not itself constitute a contract. It is the underlying oral contract of which the memorandum is an accurate statement which is enforced. Fanney v. Virginia Inv. & Mtg. Corp., 200 Va. 642 , 107 S.E.2d 414, 1959 Va. LEXIS 150 (1959).

The memorandum required by this section need not constitute or embody the contract; it need only state the essential terms of the agreement. Troyer v. Troyer, 231 Va. 90 , 341 S.E.2d 182, 1986 Va. LEXIS 168 (1986).

And the whole contract need not be embodied in the memorandum relied upon to take it out of the operation of the statute. Reynolds v. Dixon, 187 Va. 101 , 46 S.E.2d 6, 1948 Va. LEXIS 203 (1948); Browder v. Mitchell, 187 Va. 781 , 48 S.E.2d 221, 1948 Va. LEXIS 267 (1948).

The law does not require that the whole contract be in writing to be enforced when the memorandum relied on contains the essential terms of the agreement. Murphy v. Nolte & Co., 226 Va. 76 , 307 S.E.2d 242, 1983 Va. LEXIS 270 (1983).

The memorandum required by this section need not constitute or embody the contract; it need only state the essential terms of the agreement. Troyer v. Troyer, 231 Va. 90 , 341 S.E.2d 182, 1986 Va. LEXIS 168 (1986).

But essential elements are required. —

The memorandum in writing required by this section must contain all of the essential elements of the contract, except the consideration, without recourse to parol proof. Hale v. Hale, 90 Va. 728 , 19 S.E. 739 , 1894 Va. LEXIS 54 (1894); Rahm v. Klerner, 99 Va. 10 , 37 S.E. 292 , 1900 Va. LEXIS 117 (1900) (see Reynolds v. Dixon, 187 Va. 101 , 46 S.E.2d 6 (1948)).

Generally a memorandum meets the requirements of the statute if it contains the names of the parties, the terms and conditions of the contract, and a description of the property sufficient to render it capable of identification. Reynolds v. Dixon, 187 Va. 101 , 46 S.E.2d 6, 1948 Va. LEXIS 203 (1948).

While the statute of frauds does not require that the complete agreement between the parties show on the face of the signed writing, the nature and extent of the undertaking, including the essential promise to pay the debt of another, must so appear or the agreement is not enforceable. American Indus. Corp. v. First & Merchants Nat'l Bank, 216 Va. 396 , 219 S.E.2d 673, 1975 Va. LEXIS 304 (1975).

Even assuming that the employee handbook could somehow be construed to be a contract of employment, the employee offered no evidence to indicate that the handbook complied with the requirements of the statute of frauds. The employee handbook had no signature affixed to it, and therefore failed to meet the requirement of the statute of frauds. Mizell v. Sara Lee Corp., No. 2:05cv129, 2005 U.S. Dist. LEXIS 36988 (E.D. Va. June 9, 2005), aff'd, 158 Fed. Appx. 424, 2005 U.S. App. LEXIS 27217 (4th Cir. 2005).

And it must be based on a complete oral agreement. —

In order to enforce a contract for the sale of land evidenced by a written memorandum there must be an underlying complete oral agreement for the sale and purchase of the land. Browder v. Mitchell, 187 Va. 781 , 48 S.E.2d 221, 1948 Va. LEXIS 267 (1948).

Contract must be proven before memorandum has effect. —

Except as evidence of the oral contract, the memorandum contemplated by the statute of frauds has no force or effect, unless and until the oral contract has been established by a preponderance of evidence. Valjar, Inc. v. Maritime Terms., Inc., 220 Va. 1015 , 265 S.E.2d 734, 1980 Va. LEXIS 196 (1980).

If reliance is based upon an unsigned writing, it must be referred to in signed writing in clear and distinct terms. American Indus. Corp. v. First & Merchants Nat'l Bank, 216 Va. 396 , 219 S.E.2d 673, 1975 Va. LEXIS 304 (1975).

A writing which recites the receipt of an offer but does not state that it is accepted or admit the contract sought to be enforced does not satisfy the statute. Browder v. Mitchell, 187 Va. 781 , 48 S.E.2d 221, 1948 Va. LEXIS 267 (1948).

The purpose with which a memorandum is prepared is immaterial, and it will suffice although it was not intended to evidence the contract or to comply with the statute. Horner v. Holt, 187 Va. 715 , 47 S.E.2d 365, 1948 Va. LEXIS 260 (1948).

Promise to pay debt of another. —

This section does not require that a writing evidencing a promise to pay the debts of another shall show on its face the agreement between the parties in order to be valid, but only that the promise to answer for the debt of another, or some memorandum or note thereof, shall be in writing. A negotiable note made by third persons and given to the creditor, as collateral security for, or in part payment of, a debt due by another is a sufficient compliance with the statute. Saunders v. Bank of Mecklenburg, 112 Va. 443 , 71 S.E. 714 , 1911 Va. LEXIS 103 (1911).

Signing. —

The memorandum or note relied upon to take a contract out of the operation of this section need be signed only by the party to be charged thereby. Reynolds v. Dixon, 187 Va. 101 , 46 S.E.2d 6, 1948 Va. LEXIS 203 (1948).

It is not essential that the memorandum be signed with intent to comply with the statute. Whether a memorandum was signed with the thought of actually executing the instrument, or merely to receipt for money in furtherance of the contract, is immaterial. Horner v. Holt, 187 Va. 715 , 47 S.E.2d 365, 1948 Va. LEXIS 260 (1948).

A memorandum may be signed, within the meaning of the statute of frauds, by writing the name anywhere in the instrument, whether at the top, in the middle or at the bottom thereof, but wherever the name be placed, it must appear to have been done with the intention of authenticating the instrument and not for some other purpose, for a signing consists of both the act of writing a person’s name and the intention in doing this, to execute and authenticate the instrument signed. Hence, the mere writing by a proposed purchaser of an agreement for the sale and purchase of real estate, containing the names of the parties at the beginning, but not otherwise signed by the purchaser, is not a signing by such purchaser within the meaning of the statute. The writing of the name in that connection is merely for the purpose of identification, and not for authentication. Sutherland v. Munsey, 119 Va. 791 , 89 S.E. 882 , 1916 Va. LEXIS 148 (1916).

The contract or memorandum need not be delivered, even though it be a deed if the particulars are sufficiently set out therein. Bowles v. Woodson, 7 Va. 78 (1849); Parrill v. McKinley, 50 Va. (9 Gratt.) 1, 1852 Va. LEXIS 68 (1852); Chiles v. Bowyer, 127 Va. 249 , 103 S.E. 619 , 1920 Va. LEXIS 47 (1920).

Validity of oral contract may be established by evidence other than memorandum. —

The statute does not require that contracts within its purview be written. It merely interposes a bar to the enforcement of certain oral contracts, which bar may be removed by proof of a sufficient written memorandum of the transaction. When the bar is removed, it is the oral contract which is subject to enforcement, not the memorandum. Because the memorandum serves only to remove a bar to the enforcement of the oral contract, the validity of the oral contract may be established by other evidence. Drake v. Livesay, 231 Va. 117 , 341 S.E.2d 186, 1986 Va. LEXIS 172 (1986).

Because the memorandum serves only to remove a bar to the enforcement of the oral contract, the validity of the oral contract may be established by other evidence. Brookfield Centre Ltd. Partnership v. CFS Mgt. Co., 135 Bankr. 23, 1991 Bankr. LEXIS 1899 (Bankr. E.D. Va. 1991).

Parol contract should be specifically performed where fraud would otherwise result. —

The Statute of Frauds should not be applied in situations whereby a fraud would be perpetrated upon the parties seeking relief, and the alleged parol contract between the parties should be specifically performed, notwithstanding the absence of a memorandum sufficient to remove the agreement from the Statute of Frauds. Brookfield Centre Ltd. Partnership v. CFS Mgt. Co., 135 Bankr. 23, 1991 Bankr. LEXIS 1899 (Bankr. E.D. Va. 1991).

Such an expressed parol agreement would be specifically enforceable only if the fraud would not be compensable by an award of monetary damages and the party seeking specific performance had previously performed all of its obligations under the parol contract. Brookfield Centre Ltd. Partnership v. CFS Mgt. Co., 135 Bankr. 23, 1991 Bankr. LEXIS 1899 (Bankr. E.D. Va. 1991).

Parol evidence identifying subject matter. —

While parol evidence is not admissible to vary, alter or contradict what is in a writing, it is admissible for the purpose of identifying the subject matter of the contract. Such subject matter may, as between the parties thereto, be identified by parol as well where it is land as where it is personal property. Matthews v. LaPrade, 130 Va. 408 , 107 S.E. 795 , 1921 Va. LEXIS 162 (1921).

The territory in which a traveling salesman has the right to sell is one of the essential terms of his contract of employment which cannot be shown by parol. Rahm v. Klerner, 99 Va. 10 , 37 S.E. 292 , 1900 Va. LEXIS 117 (1900).

Decisions under one clause of the statute are generally in point under other clauses when similar questions arise in determining the sufficiency of the memorandum. Reynolds v. Dixon, 187 Va. 101 , 46 S.E.2d 6, 1948 Va. LEXIS 203 (1948).

B.Effect of Agency.

Parol authorization. —

The statute does not require the agent to have been authorized in writing to sign a contract for the sale of land, and he may be authorized verbally to make such contract. Yerby v. Grigsby, 36 Va. (9 Leigh) 387, 1838 Va. LEXIS 24 (1838).

Signature in agent’s name. —

The signing by the agent of his own name to a contract for the sale of land is sufficient. The statute does not make it indispensable that he should sign the name of the party to be charged therewith. Yerby v. Grigsby, 36 Va. (9 Leigh) 387, 1838 Va. LEXIS 24 (1838).

A plaintiff’s allegation that a purchase order was a sufficient writing to hold the defendant liable for the debts of his corporation was without merit where, even if the defendant had signed a purchase order, the complaint did not allege that the purchase order charged the defendant with contractual obligations; the only reasonable inference to be drawn from the complaint, as pled, was that a purchase order potentially was signed by the defendant as the agent of the entity to be charged, i.e., the defendant’s corporation. Universal Test Equip., Inc. v. Heath, No. 3:99CV000103, 2000 U.S. Dist. LEXIS 15422 (W.D. Va. Oct. 20, 2000).

Partnership transactions. —

It seems that a deed signed by a partner in the name of the partnership is a sufficient note in writing of the agreement for a lease to the partnership, to take the case out of the statute of frauds, as to them. Kyle v. Roberts, 33 Va. (6 Leigh) 495, 1835 Va. LEXIS 45 (1835).

A release entered of record by a verbal direction in open court is valid under the statute of frauds; for the clerk who makes the note or memorandum is to be considered as the agent of both parties. Boykin v. Smith, 17 Va. (3 Munf) 102, 1812 Va. LEXIS 20 (1812).

Manager of corporation. —

If the president of a corporation was clothed with power to employ a manager for the corporation, and employed one as his agent to conduct negotiations and submit a proposition to plaintiff, then the acts of the agent were the acts of the president, and any memorandum, note or contract signed by him was a memorandum, note or contract signed by the party to be charged. Radford Water Power Co. v. Dunlap, 128 Va. 658 , 105 S.E. 257 , 1920 Va. LEXIS 126 (1920).

Auctioneer’s memorandum. —

In auction sales of real estate, the auctioneer is the agent both of the vendor and the purchaser; and his note or entry of the sale, the price and the purchaser’s name, is a sufficient memorandum to satisfy the statute of frauds. And it is the same thing, if the note or entry is made by a clerk of the auctioneer. Smith v. Jones, 34 Va. (7 Leigh) 165, 1836 Va. LEXIS 25 (1836). And see Walker v. Herring, 62 Va. (21 Gratt.) 678, 1872 Va. LEXIS 83 (1872).

Auctioneer’s memorandum evidencing sale held a sufficient “memorandum” to satisfy the statute of frauds. Brown v. Butler, 87 Va. 621 , 13 S.E. 71 , 1891 Va. LEXIS 114 (1891).

In a suit for specific performance, complainant claimed to be the purchaser of property at an auction sale under a deed of trust. It was held that there was no written evidence of complainant’s contract of purchase, such as is required by this section, where the auctioneer’s memorandum showed that the sale was made to another person who did not represent complainant. Morris v. Harrop, 154 Va. 127 , 152 S.E. 343 , 1930 Va. LEXIS 202 (1930).

Trustee, acting in the additional capacity of auctioneer in a trustee’s sale of real property, became the agent of highest bidder from the figurative “fall of the hammer” until closing of the sale. Accordingly, the memorandum of sale of the buyer’s name he executed was a sufficient writing, signed by the agent of the party to be charged, to take the case out of the statute of frauds. Yaffe v. Heritage Sav. & Loan Ass'n, 235 Va. 577 , 369 S.E.2d 404, 4 Va. Law Rep. 3093, 1988 Va. LEXIS 74 (1988).

Deputy sheriff’s memorandum. —

In a sale made by a deputy sheriff, he is the agent both of the vendor and purchaser; and his setting down the name of the purchaser and the price, on the schedule of the insolvent’s effects, by which he makes the sale, is a sufficient memorandum in writing. Brent v. Green, 33 Va. (6 Leigh) 16, 1835 Va. LEXIS 10 (1835).

Act of auctioneer’s partner. —

An auctioneer conducting a sale of real estate, writes the name of W. as the purchaser. His partner, who was not present at the sale, without any communication with, or authority from H. on the day after the sale writes the name of H. as a joint purchaser with W. The partner had no authority to write the name of H. and H. is not bound by it. Walker v. Herring, 62 Va. (21 Gratt.) 678, 1872 Va. LEXIS 83 (1872).

Contesting auctioneer’s entry. —

In suit by the vendors of land at public auction, against the purchaser to compel him to comply, parol evidence is admissible to prove that the written memorandum of contract signed by the auctioneer does not contain the stipulation relied on as a condition. Averett v. Lipscombe, 76 Va. 404 , 1882 Va. LEXIS 45 (1882).

C.Particular Writings.

Separate writings. —

Where the memorandum of the bargain between the parties is contained in separate pieces of paper, and these papers contain the whole bargain, they form together such a memorandum as will satisfy the statute, provided the contents of the signed paper make such reference to the other written paper, or papers, as to enable the court to construe the whole of them together as constituting all the terms of the bargain. But if it be necessary to produce parol evidence in order to connect a signed paper with others unsigned by reason of the absence of any internal evidence in the contents of the signed paper to show a reference to or connection with the unsigned papers, then the several papers taken together do not constitute a memorandum in writing of the bargain so as to satisfy the statute. But it is not necessary that the signed paper should refer to the unsigned paper as such. It is sufficient to show that a particular unsigned paper, and nothing else, can be referred to, and parol evidence is admissible for that purpose. Darling v. Cumming, 92 Va. 521 , 23 S.E. 880 , 1896 Va. LEXIS 11 (1896); Rahm v. Klerner, 99 Va. 10 , 37 S.E. 292 , 1900 Va. LEXIS 117 (1900); Jordan v. Mahoney, 109 Va. 133 , 63 S.E. 467 , 1909 Va. LEXIS 12 (1909).

Letters and writings between the parties. —

While a complete contract binding under the statute of frauds may be gathered from letters and writings between the parties, the letters and writings of themselves must show their relation to the contract. Reynolds v. Dixon, 187 Va. 101 , 46 S.E.2d 6, 1948 Va. LEXIS 203 (1948).

A letter written by the owner of land in reply to a written proposal to purchase, saying, “I accept the offer you made me for $1,500 cash” and signed by such owner, is a sufficient compliance with the statute. Croghan v. Worthington Hdwe. Co., 115 Va. 497 , 79 S.E. 1039 , 1913 Va. LEXIS 61 (1913).

A letter promising to make a deed for a tract of land, “according to contract,” is a sufficient memorandum under this section, not- withstanding the terms of such contract are not mentioned, if the party claiming the conveyance can prove by the testimony of one witness, what price was agreed to be given for the land. Johnson v. Ronald, 18 Va. (4 Munf) 77, 1813 Va. LEXIS 28 (1813).

Letter held to constitute a sufficient memorandum of contract for the sale of a house. Reynolds v. Dixon, 187 Va. 101 , 46 S.E.2d 6, 1948 Va. LEXIS 203 (1948).

A letter addressed to a real estate broker who has a lot for sale, authorizing him to purchase the lot at a price stated, and which is exhibited by the broker to the owner of the lot, who accedes to the price mentioned, and writes and signs at the foot of the letter, “I accept the above,” is not a sufficient memorandum of a sale of real estate within the meaning of this section. In order to give the letter any effect, the broker would have to act on the authority given him in the letter by making the purchase and executing, as agent, a memorandum in writing. Unless and until this was done there was no memorandum in writing signed by the person to be charged or his agent. Jordan v. Mahoney, 109 Va. 133 , 63 S.E. 467 , 1909 Va. LEXIS 12 (1909).

Enforcement of this contract was not barred by the statute of frauds because although defendant never signed the original March 7, 2002 proposal letter, defendant, in a letter dated April 24, 2002, sought to enforce the provisions of the March 7, 2002 letter. John M. Floyd & Assoc. v. First Bank, No. 5:02CV00101, 2004 U.S. Dist. LEXIS 31793 (W.D. Va. Nov. 2, 2004).

There is no contract until the formal writing contemplated by the language used has been prepared, approved, and executed in accordance with the intentions of the parties. Brookfield Centre Ltd. Partnership v. CFS Mgt. Co., 135 Bankr. 23, 1991 Bankr. LEXIS 1899 (Bankr. E.D. Va. 1991).

Terms in a letter between the parties such as “subject to a formal contract” and “notes and papers to be drawn up as soon as to be convenient” clearly indicate the intention of the parties not to be bound by the terms of the agreement until they can be formalized in a written contract. Brookfield Centre Ltd. Partnership v. CFS Mgt. Co., 135 Bankr. 23, 1991 Bankr. LEXIS 1899 (Bankr. E.D. Va. 1991).

A contract made by telegrams is a contract in writing signed by the party to be charged within the meaning of this section. Radford Water Power Co. v. Dunlap, 128 Va. 658 , 105 S.E. 257 , 1920 Va. LEXIS 126 (1920).

Undelivered deed. —

Where it satisfactorily appears from the proof that an undelivered deed expresses the terms of a previous verbal contract between the parties, such a deed is sufficient to take the contract out of the statute of frauds, and may properly be made the basis of specific performance. Chiles v. Bowyer, 127 Va. 249 , 103 S.E. 619 , 1920 Va. LEXIS 47 (1920); Boston v. DeJarnette, 153 Va. 591 , 151 S.E. 146 , 1930 Va. LEXIS 255 (1929).

Will. —

The memorandum in writing required by this section is not met where the only memorandum is one of two mutual wills, neither of which refers to the other nor to any other writing. Hale v. Hale, 90 Va. 728 , 19 S.E. 739 , 1894 Va. LEXIS 54 (1894).

Listing agreement between owner and broker which allegedly “was to be in force for a period of thirty days” could not have been performed within a year but had to be performed, if at all, within that time, and subdivision 7 (now subdivision 8) of this section does not apply. Reich v. Kimnach, 216 Va. 109 , 216 S.E.2d 58, 1975 Va. LEXIS 256 (1975).

A listing agreement between an owner of land and a broker is not governed by the statute of frauds. Reich v. Kimnach, 216 Va. 109 , 216 S.E.2d 58, 1975 Va. LEXIS 256 (1975).

An oral listing agreement between owner and realtor for the sale of real estate is valid and binding. Reich v. Kimnach, 216 Va. 109 , 216 S.E.2d 58, 1975 Va. LEXIS 256 (1975).

Stock subscriptions. —

If a person verbally agrees to take stock in a joint stock company to be paid for in installments covering a period of more than one year and the company accepts him as a stockholder, and enters his name on the roll of its stockholders, this is sufficient to bind him on his contract of subscription. Reed v. Gold, 102 Va. 37 , 45 S.E. 868 , 1903 Va. LEXIS 102 (1903).

The resolution of a board of directors duly signed by its president and secretary, which sufficiently sets forth the terms of a contract, is a compliance with the statute of frauds. Central Land Co. v. Johnston, 95 Va. 223 , 28 S.E. 175 , 1897 Va. LEXIS 29 (1897); Newport News, Hampton & Old Point Dev. Co. v. Newport News St. Ry., 97 Va. 19 , 32 S.E. 789 , 1899 Va. LEXIS 5 (1899).

When, however, such a resolution is relied on as the evidence of a written agreement it must show on its face a complete and concluded agreement between the parties. Nothing must be left open for future negotiation and agreement, otherwise it cannot be enforced. Newport News, Hampton & Old Point Dev. Co. v. Newport News St. Ry., 97 Va. 19 , 32 S.E. 789 , 1899 Va. LEXIS 5 (1899) (see Virginia Hot Springs Co. v. Harrison, 93 Va. 569 , 25 S.E. 888 (1896); Berry v. Wortham, 96 Va. 87 , 30 S.E. 443 (1898); Boisseau v. Fuller, 96 Va. 45 , 30 S.E. 457 (1898)).

A stockholders’ resolution, signed by the duly elected secretary of the corporation, which spelled out in detail all of the essential parts of an agreement to employ one as executive vice-president for a period of 10 years, was a sufficient memorandum to satisfy the requirement of the statute. Such corporate minutes which embody the essentials of a contract are a sufficient memorandum to satisfy the statutory requirement. And the fact that the stockholders’ resolution contemplated ratification by the action of the board of directors did not detract from its sufficiency as a memorandum to satisfy the statute. Fanney v. Virginia Inv. & Mtg. Corp., 200 Va. 642 , 107 S.E.2d 414, 1959 Va. LEXIS 150 (1959).

A resolution and letter of stockholders agreeing to assume debts of a corporation constituted a written promise upon the part of defendants to pay the debts of the corporation, and was a sufficient compliance with this section. Salyer Co. v. Doss Coal Co., 157 Va. 144 , 160 S.E. 54 , 1931 Va. LEXIS 310 (1931).

Receipted bills for official bond premiums held sufficient memoranda in writing to satisfy the requirements of the statute. American Sur. Co. v. Commonwealth, 180 Va. 97 , 21 S.E.2d 748, 1942 Va. LEXIS 149 (1942).

Statute of Frauds not satisfied. —

Where an insurance company ceased collaboration on a mortgage portfolio protection program, the insurance company was entitled to summary judgment as to the agent’s claim for breach of contract because the three-year oral agreement did not satisfy the Statute of Frauds; webpage printouts, a press release, and emails discussing the program did not state any of the essential terms of the contract and offered no actual evidence that the insurance company intended to be bound by any agreement. Hecht v. Am. Bankers Ins. Co., No. 3:04-CV-00098, 2005 U.S. Dist. LEXIS 25883 (W.D. Va. Oct. 21, 2005).

A divorce deposition is a memorandum sufficient to satisfy the statute of frauds. Troyer v. Troyer, 231 Va. 90 , 341 S.E.2d 182, 1986 Va. LEXIS 168 (1986).

A letter from employer to employee does not fulfill the writing requirement for the statute of frauds where the letter omits the duration of employment, an essential term to the contract in view of the dispute between the parties. Nargi v. Camac Corp., 820 F. Supp. 253, 1992 U.S. Dist. LEXIS 21322 (W.D. Va. 1992).

Letters held not sufficient memorandum of contract of employment. Rahm v. Klerner, 99 Va. 10 , 37 S.E. 292 , 1900 Va. LEXIS 117 (1900).

Pleading. —

The memorandum to take a contract out of the operation of the statute of frauds may be in the form of a pleading. Browder v. Mitchell, 187 Va. 781 , 48 S.E.2d 221, 1948 Va. LEXIS 267 (1948).

Allegations of bill of complaint held not a sufficient memorandum in writing to satisfy the statute. Browder v. Mitchell, 187 Va. 781 , 48 S.E.2d 221, 1948 Va. LEXIS 267 (1948).

IX.Operation and Effect of Statute.

A.In General.

Statute only makes contracts nonenforceable. —

This section does not make contracts mentioned therein void, but simply provides that no action shall be brought on them. Burruss v. Hines, 94 Va. 413 , 26 S.E. 875 , 1897 Va. LEXIS 90 (1897).

The statute does not affect the validity of contracts, but only the remedy for their enforcement. Dupuy v. Delaware Ins. Co., 63 F. 680, 1894 U.S. App. LEXIS 2992 (C.C.D. Va. 1894).

A contract within the ambit of the statute is not void ab initio, but cannot be enforced. T. v. T., 216 Va. 867 , 224 S.E.2d 148, 1976 Va. LEXIS 217 (1976).

It does not render testimony inadmissible regarding contracts mentioned therein for collateral purposes such as proving rental value. Burruss v. Hines, 94 Va. 413 , 26 S.E. 875 , 1897 Va. LEXIS 90 (1897).

Where, upon the trial of a case of unlawful detainer, the defendant sets up title in himself, plaintiff may prove that defendant entered upon the premises under a parol lease from himself, though the lease proved was to continue for more than a year. Adams v. Martin, 49 Va. (8 Gratt.) 107, 1851 Va. LEXIS 48 (1851).

Statute bars action for breach of contract. —

Where the statute of frauds is asserted as a defense, an action for damages cannot be sustained for the breach of a parol contract for the conveyance of land. Lloyd v. Smith, 150 Va. 132 , 142 S.E. 363 , 1928 Va. LEXIS 301 (1928).

But there may be recovery for services rendered. —

While the statute of frauds bars an action at law to recover damages for the breach of a parol agreement to devise real estate, such an action may be maintained on the implied contract to recover the reasonable value of the services rendered. Ricks v. Sumler, 179 Va. 571 , 19 S.E.2d 889, 1942 Va. LEXIS 249 (1942).

Executed contracts generally. —

Even as to those executory contracts which are within the statute, it is now well settled that when they have been fully executed the statute has no power over them and no effect upon the rights, duties and obligations of the parties. McMullin v. Sanders, 79 Va. 356 , 1884 Va. LEXIS 90 (1884).

Where a contract for the sale of real estate has been executed by a deed to the purchaser, and all that remains to be done is the payment of the purchase money, the case is not within the statute of frauds. Spangler v. Ashwell, 116 Va. 992 , 83 S.E. 930 , 1914 Va. LEXIS 114 (1914).

Invalidity of part making whole invalid. —

Where a verbal promise is entire, and relates in part to a matter which renders it necessary under the statute of frauds that the promise should be in writing, the whole promise is void. Engleby v. Harvey, 93 Va. 440 , 25 S.E. 225 , 1896 Va. LEXIS 94 (1896).

Thus, a parol promise by a landowner to pay a builder for improvements, begun under a contract with his tenant, for which the tenant is unable to pay, is void under the statute as to the portion of the debt already incurred. And where the promise was entire, being an agreement to pay for what had been done and what was to be done, the invalidity of a portion of it invalidated the whole. Noyes v. Humphreys, 52 Va. (11 Gratt.) 636, 1854 Va. LEXIS 49 (1854).

Recovery of consideration. —

The purchaser under an unwritten contract for the purchase of land may recover back anything he may have paid to vendor on account of such purchase. Brown v. Pollard, 89 Va. 696 , 17 S.E. 6 , 1893 Va. LEXIS 89 (1893).

Recovery after disaffirming contract. —

A purchaser of land was put in possession, and paid part of the purchase money under the contract, but being sued by the vendor for the balance of the purchase money, he defended on the ground that the contract was void by the statute of frauds, and so defeated the action. It was held that the purchaser after thus disaffirming and abandoning the contract was not entitled to specific execution thereof in equity, but he was entitled to have the money he had paid refunded to him. Payne v. Graves, 32 Va. (5 Leigh) 561, 1834 Va. LEXIS 65 (1834).

Reformation of deeds for fraud and mistake. —

Decree of chancellor directing reformation of deeds for fraud and mistake held not in violation of statute of frauds, since a well recognized exception allows admission of extrinsic evidence in such cases to establish the true contract. Larchmont Properties v. Cooperman, 195 Va. 784 , 80 S.E.2d 733, 1954 Va. LEXIS 157 (1954).

Employee handbook. —

In an action by a former court security officer for wrongful discharge by employer, where the employment contract was originally terminable at will, but later employer orally informed employee that he had a job as long as he did not violate the standards of conduct noted in an employee handbook, the handbook, by itself, could not create a new offer of employment, and employer’s alleged representations were essential in establishing a superseding oral contract which could only be terminated for just cause. Windsor v. Aegis Servs., Ltd., 691 F. Supp. 956, 1988 U.S. Dist. LEXIS 9003 (E.D. Va. 1988), aff'd, 869 F.2d 796, 1989 U.S. App. LEXIS 3543 (4th Cir. 1989).

B.Part Performance.

Not available in actions at law for breach of contract. —

The doctrine of part performance is not available in actions at law for damages for breach of contract to take an oral agreement out of the statute of frauds. Lance J. Marchiafava, Inc. v. Haft, 777 F.2d 942, 1985 U.S. App. LEXIS 25162 (4th Cir. 1985).

At law, part performance of a parol agreement for the sale of land will not exempt it from the operation of the statute of frauds. Anthony v. Leftwich, 24 Va. (3 Rand.) 238, 1825 Va. LEXIS 18 (1825); Brown v. Pollard, 89 Va. 696 , 17 S.E. 6 , 1893 Va. LEXIS 89 (1893).

Rule in equity. —

Notwithstanding the statute of frauds, equity will at all times lend its aid to defeat a fraud, yet to justify the court in relaxing the operation of the statute, and in compelling the specific execution of a parol contract for the sale of land, clear and convincing proof is essential, otherwise the desire to prevent fraud might result in great wrong and injustice to him who has the lawful right, and thus the prime object of the statute be defeated. Wright v. Pucket, 63 Va. (22 Gratt.) 370, 1872 Va. LEXIS 26 (1872); Pierce v. Catron, 64 Va. (23 Gratt.) 588, 1873 Va. LEXIS 58 (1873); Hale v. Hale, 90 Va. 728 , 19 S.E. 739 , 1894 Va. LEXIS 54 (1894); Darling v. Cumming, 92 Va. 521 , 23 S.E. 880 , 1896 Va. LEXIS 11 (1896); Boyd v. Cleghorn, 94 Va. 780 , 27 S.E. 574 , 1897 Va. LEXIS 141 (1897); Plunkett v. Bryant, 101 Va. 814 , 45 S.E. 742 , 1903 Va. LEXIS 92 (1903).

The principles upon which courts of equity have avoided the statute of frauds, upon the ground of part performance of a parol agreement, are now as well settled as any of the acknowledged doctrines of equity jurisprudence. From the numerous decisions on the subject, the following principles may be extracted and briefly stated as follows: (1) The parol agreement relied on must be certain and definite in its terms. (2) The acts proved in part performance must refer to, result from, or be made in pursuance of the agreement proved. (3) The agreement must have been so far executed that a refusal of full execution would operate a fraud upon the party, and place him in a situation which does not lie in compensation. Where these three things concur, a court of equity will decree specific execution; otherwise the statute will be a bar to specific performance. Anthony v. Leftwich, 24 Va. (3 Rand.) 238, 1825 Va. LEXIS 18 (1825); Heth v. Woolridge, 27 Va. (6 Rand.) 605, 1828 Va. LEXIS 44 (1828); Payne v. Graves, 32 Va. (5 Leigh) 561, 1834 Va. LEXIS 65 (1834); McCue v. Ralston, 50 Va. (9 Gratt.) 430, 1852 Va. LEXIS 15 (1852); Wright v. Pucket, 63 Va. (22 Gratt.) 370, 1872 Va. LEXIS 26 (1872); Pierce v. Catron, 64 Va. (23 Gratt.) 588, 1873 Va. LEXIS 58 (1873); Floyd v. Harding, 69 Va. (28 Gratt.) 401, 1877 Va. LEXIS 77 (1877); Rhea v. Jordan, 69 Va. (28 Gratt.) 678, 1877 Va. LEXIS 93 (1877); Lester v. Lester, 69 Va. (28 Gratt.) 737 (1877); Burkholder v. Ludlam, 71 Va. (30 Gratt.) 255, 71 Va. (30 Gratt.) 765, 1878 Va. LEXIS 94 (1878); Halsey v. Peters, 79 Va. 60 , 1884 Va. LEXIS 60 (1884); Hurt v. Prillaman, 79 Va. 257 , 1884 Va. LEXIS 81 (1884); Litterall v. Jackson, 80 Va. 604 , 1885 Va. LEXIS 100 (1885); Barrett v. Forney, 82 Va. 277 (1886); Edichal Bullion Co. v. Columbia Gold Mining Co., 87 Va. 641 , 13 S.E. 100 , 1891 Va. LEXIS 116 (1891); Reynolds v. Necessary, 88 Va. 125 , 13 S.E. 348 , 1891 Va. LEXIS 11 (1891); Hale v. Hale, 90 Va. 728 , 19 S.E. 739 , 1894 Va. LEXIS 54 (1894); Martin v. Martin, 112 Va. 731 , 72 S.E. 680 , 1911 Va. LEXIS 144 (1911); Wheat v. Wheat, 119 Va. 861 , 91 S.E. 827 (1916); Mann v. Mann, 159 Va. 240 , 165 S.E. 522 , 1932 Va. LEXIS 187 (1932); Glovier v. Dingus, 173 Va. 268 , 4 S.E.2d 551, 1939 Va. LEXIS 193 (1939); Pair v. Rook, 195 Va. 196 , 77 S.E.2d 395, 1953 Va. LEXIS 190 (1953); Taylor v. Hopkins, 196 Va. 571 , 84 S.E.2d 430, 1954 Va. LEXIS 253 (1954); Thorndike v. Reynolds, 63 Va. (22 Gratt.) 21, 1872 Va. LEXIS 2 (1872); Taylor's Devisees v. Rightmire, 35 Va. (8 Leigh) 468, 1836 Va. LEXIS 77 (1836); County School Bd. v. Dowell, 190 Va. 676 , 58 S.E.2d 38, 1950 Va. LEXIS 254 (1950).

If a parol contract be established and performance of his part of the agreement be proved by one seeking specific performance, then he is entitled to full execution of the contract by conveyance of the parcel of real estate notwithstanding the statute of frauds. Dickenson v. McLemore, 201 Va. 333 , 111 S.E.2d 416, 1959 Va. LEXIS 231 (1959).

The part performance must be consistent with no theory other than the existence of the alleged oral contract. T. v. T., 216 Va. 867 , 224 S.E.2d 148, 1976 Va. LEXIS 217 (1976).

The act or acts of part performance must be of such unequivocal nature as to be evidence of the existence of an agreement. T. v. T., 216 Va. 867 , 224 S.E.2d 148, 1976 Va. LEXIS 217 (1976).

The parol agreement must be complete, certain and definite in all its parts. Its terms must be so precise as to obviate any reasonable misunderstanding of its import. Hill v. Luck, 201 Va. 586 , 112 S.E.2d 858, 1960 Va. LEXIS 133 (1960).

Proof of parol contract. —

The parol contract sought to be enforced on the ground of part performance must be certain and definite in its terms, and the evidence relied upon to establish the contract must be clear and convincing. Dickenson v. McLemore, 201 Va. 333 , 111 S.E.2d 416, 1959 Va. LEXIS 231 (1959).

Though acts of part performance are admissible as evidence of a parol contract, yet what the contract is must be shown by other evidence, and its terms must be clearly proved. Dickenson v. McLemore, 201 Va. 333 , 111 S.E.2d 416, 1959 Va. LEXIS 231 (1959).

Acts taking contract out of statute. —

Acts of part performance to take a parol contract out of the statute of frauds must be of such unequivocal nature as of themselves to be evidence of the existence of an agreement; as for example, where, under parol agreement to sell land, the purchaser is put in possession and makes improvements. Hale v. Hale, 90 Va. 728 , 19 S.E. 739 , 1894 Va. LEXIS 54 (1894) (see Pair v. Rook, 195 Va. 196 , 77 S.E.2d 395 (1953)).

The delivery and taking possession of land by the purchaser under a parol contract, at the time of the purchase and in execution of it, where the purchase money has been paid, is such part performance as to take it out of the statute, especially where, if the sale were vacated, the purchaser would be unable to get his money back, and a pleading of the statute of frauds by the vendor would operate as a fraud on the purchaser. Long v. Hagerstown Agrl. Implement Mfg. Co., 71 Va. (30 Gratt.) 665, 1878 Va. LEXIS 87 (1878).

An act of part performance sufficient to take a case out of the statute of frauds must be the definite and unequivocal act of the party relying thereon, or that of his predecessor in title or claim, strictly referable to the contract, with a design to perform it, and be such as but for the agreement would not have been done. Pair v. Rook, 195 Va. 196 , 77 S.E.2d 395, 1953 Va. LEXIS 190 (1953).

For instances of part performance taking oral contracts for conveyance of land out of the operation of the statute, see Rhea v. Jordan, 69 Va. (28 Gratt.) 678, 1877 Va. LEXIS 93 (1877); Brown v. Brown, 77 Va. 619 , 1883 Va. LEXIS 99 (1883).

For instance of a parol sale of the land not taken out of the operation of the statute, see Branham v. Clinchfield Coal Corp., 123 Va. 346 , 96 S.E. 761 , 1918 Va. LEXIS 35 (1918).

For a case assuming, arguendo, that the statute of frauds would otherwise apply to the contract involved, but that in any event the contract was so far performed that it should be enforced, see Brooks v. Roanoke County San. Auth., 201 Va. 934 , 114 S.E.2d 758, 1960 Va. LEXIS 180 (1960).

Payment of consideration. —

In general, the payment of the consideration is not such a part performance of a parol agreement for the purchase of lands as will relieve it from the operation of the statute of frauds. But where the consideration consists of services to be rendered, which are of such a peculiar character that it is impossible to estimate their value to the vendor by a pecuniary standard, the performance of the services will entitle the vendee to a specific performance, notwithstanding the contract was by parol. Reed v. Reed, 108 Va. 790 , 62 S.E. 792 , 1908 Va. LEXIS 98 (1908).

B. by parol contract sells W. an acre of woodland for $30, to be paid in three years in work, and puts him in possession. W. clears the land and builds on it a dwelling, which with his family he continues to occupy, and paid B. the purchase money in work. It was held that W. is entitled to a conveyance in specific performance of the sale of the land. Bowman v. Wolford, 80 Va. 213 , 1885 Va. LEXIS 57 (1885).

Part performance of parol gift. —

A court of equity will compel the conveyance of the legal title of land claimed under a parol gift supported by a meritorious consideration, and by which the donee has been induced to alter his position and make expenditures of money in valuable improvements on the land. Burkholder v. Ludlam, 71 Va. (30 Gratt.) 255, 71 Va. (30 Gratt.) 765, 1878 Va. LEXIS 94 (1878); Stokes v. Oliver, 76 Va. 72 , 1882 Va. LEXIS 6 (1882); Halsey v. Peters, 79 Va. 60 , 1884 Va. LEXIS 60 (1884); Griggsby v. Osborn, 82 Va. 371 , 1886 Va. LEXIS 45 (1886); Fishburne v. Ferguson, 85 Va. 321 , 7 S.E. 361 , 1888 Va. LEXIS 39 (1888).

Parol contract to make a will. —

In a suit for specific performance of a contract to make a will, where part performance is relied upon, it is essential that the parol agreement must be certain and definite in its terms. It is equally essential that the evidence relied upon to establish the agreement and its part performance by the party seeking relief must be clear and convincing. Everton v. Askew, 199 Va. 778 , 102 S.E.2d 156, 1958 Va. LEXIS 125 (1958).

Where a husband agreed to convey to his wife the property he then owned, and cause to be conveyed to her all property later acquired, in exchange for her promise to will the property to him, and at her death all real estate he had acquired was in her name, the requirements necessary to take the parol agreement out of the statute of frauds had been fulfilled and the chancellor properly decreed specific performance of the agreement. Everton v. Askew, 199 Va. 778 , 102 S.E.2d 156, 1958 Va. LEXIS 125 (1958).

An oral agreement that “we will leave you everything that we have at our death” in no way limited the right to dispose of any property prior to death, notwithstanding part performance. Hill v. Luck, 201 Va. 586 , 112 S.E.2d 858, 1960 Va. LEXIS 133 (1960).

For a case granting specific performance of a parol contract to devise realty, see Patton v. Patton, 201 Va. 705 , 112 S.E.2d 849, 1960 Va. LEXIS 151 (1960).

Right to specific performance not established. —

Right to specific performance of a parol contract to convey real estate, where part performance of contract was relied upon to take it out of the statute of frauds, held not established. Dickenson v. McLemore, 201 Va. 333 , 111 S.E.2d 416, 1959 Va. LEXIS 231 (1959).

Nephew’s performance of the terms of an oral agreement, whereby his aunt and uncle agreed to leave him their farm if he moved on the property and helped them manage it before their deaths, did not satisfy the Statute of Frauds, subdivision 6 of § 11-2 such that he was entitled to specific performance at their deaths because the nephew was unable to establish the existence of the oral agreement by certain and definite terms since he had no independent corroboration of the oral agreement. Va. Home for Boys & Girls v. Phillips, 279 Va. 279 , 688 S.E.2d 284, 2010 Va. LEXIS 1 (2010).

Evidence insufficient. —

Where plaintiffs, a development company and its president, sought specific performance of a purported contract for the sale of land, the statute of frauds prohibited the enforcement of the purported oral contract and the evidence was insufficient to establish that plaintiffs undertook any actions in furtherance of the purported contract so as to remove the case from the bar of the statute of frauds since plaintiffs’ acts regarding surveying, engineering, and performing soil studies were not part of the purported contract. Moorman v. Blackstock, Inc., 276 Va. 64 , 661 S.E.2d 404, 2008 Va. LEXIS 76 (2008).

C.Parol Trusts.

The statute of frauds is not applicable to express trusts in personalty, although created by parol. Riggan's Adm'r v. Riggan, 93 Va. 78 , 24 S.E. 920 , 1896 Va. LEXIS 54 (1896); Berry v. Berry, 119 Va. 9 , 89 S.E. 242 , 1916 Va. LEXIS 70 (1916); Russell v. Passmore, 127 Va. 475 , 103 S.E. 652 , 1920 Va. LEXIS 65 (1920).

Nor to express trusts in realty. —

The statute of frauds is not applicable to express parol trusts in realty. Young v. Holland, 117 Va. 433 , 84 S.E. 637 , 1915 Va. LEXIS 53 (1915); Fleenor v. Hensley, 121 Va. 367 , 93 S.E. 582 , 1917 Va. LEXIS 41 (1917); Russell v. Passmore, 127 Va. 475 , 103 S.E. 652 , 1920 Va. LEXIS 65 (1920); Daniel v. Viar, 147 Va. 323 , 137 S.E. 526 , 1927 Va. LEXIS 305 (1927).

An express trust in real estate may be created and established by parol in this State, but the declaration must be unequivocal and explicit, and the evidence clear and convincing. Kline v. Kline, 103 Va. 263 , 48 S.E. 882 , 1904 Va. LEXIS 33 (1904); Shield v. Adkins, 117 Va. 616 , 85 S.E. 492 , 1915 Va. LEXIS 75 (1915); Clary v. Spain, 119 Va. 58 , 89 S.E. 130 , 1916 Va. LEXIS 75 (1916); Hook v. Hook, 126 Va. 249 , 101 S.E. 223 , 1919 Va. LEXIS 92 (1919).

Resulting trusts. —

Where land is purchased and paid for by one person, and the conveyance is taken to another, the law will imply a trust for the benefit of the former; and such purchase and payment may be proved by parol evidence. Such trust is not within the statute of frauds. Bank of United States v. Carrington, 34 Va. (7 Leigh) 566, 1836 Va. LEXIS 55 (1836).

Parol evidence to establish a resulting trust in land, arising from the payment of the purchase money by another than the grantee, must be very clear, and should be received with great caution. Bank of United States v. Carrington, 34 Va. (7 Leigh) 566, 1836 Va. LEXIS 55 (1836); Coons v. Coons, 106 Va. 572 , 56 S.E. 576 , 1907 Va. LEXIS 123 (1907); Lee v. Elliott, 113 Va. 618 , 75 S.E. 146 , 1912 Va. LEXIS 80 (1912).

For instances of resulting trusts not shown, see Moorman v. Arthur, 90 Va. 455 , 18 S.E. 869 , 1894 Va. LEXIS 12 (1894); Throckmorton v. Throckmorton, 91 Va. 42 , 22 S.E. 162 , 1895 Va. LEXIS 5 (1895).

Where a principal, having no interest in the land to be purchased, makes a verbal contract with an agent to buy for him, and the latter purchases in his own name and with his own funds and then repudiates the agency and refuses to convey to the principal, the question whether the contract is within the statute of frauds and not enforceable against the agent, depends upon whether the contract in its essence and effect was one of agency or was one for the purchase of real estate. If it was the former, it creates a trust relation, is not within the statute of frauds, and can be established by parol; if the latter, the parties are to that extent dealing with each other as principals and the contract is within the statute and can only be established by such a writing as will meet the requirements thereof. Matney v. Yates, 121 Va. 506 , 93 S.E. 694 , 1917 Va. LEXIS 54 (1917), overruled in part, Wingate v. Coombs, 237 Va. 501 , 379 S.E.2d 304, 5 Va. Law Rep. 2220, 1989 Va. LEXIS 78 (1989).

X.Defense and Procedure.

Statute gives only right of defense. —

This section does not confer a right of action, but only gives a right of defense in certain cases. McIlvane v. Big Stoney Lumber Co., 105 Va. 613 , 54 S.E. 473 , 1906 Va. LEXIS 69 (1906).

Which may be waived. —

Where the statute of frauds is not asserted as a defense in the lower court or in the Supreme Court, such a defense is waived. Ricks v. Sumler, 179 Va. 571 , 19 S.E.2d 889, 1942 Va. LEXIS 249 (1942).

Where defendant put in evidence the writing claimed to bind him to answer for another’s debt and did not rely on its insufficiency under the statute of frauds, and plaintiffs, without objection proved by parol their agreement with defendant’s agent binding defendant to answer for another’s debt, the defense of the statute of frauds and of the insufficiency of the writing thereunder was waived, and cannot be set up after verdict for plaintiff. Moore Lumber Corp. v. Walker, 110 Va. 775 , 67 S.E. 374 , 1910 Va. LEXIS 123 (1910).

Who may plead statute. —

Where a contract for the sale of land had been executed by the parties, a tort-feasor, sued for injury to the land, could not object that the contract of sale was not enforceable in equity because it did not comply with the statute of frauds. Virginian Ry. v. Jeffries, 110 Va. 471 , 66 S.E. 731 , 1909 Va. LEXIS 168 (1909).

One of two joint purchasers of land cannot take a conveyance to himself and defraud his copurchaser by the plea that there was no contract in writing between them and their vendor. Brown v. Brown, 77 Va. 619 , 1883 Va. LEXIS 99 (1883).

The defense of the statute to the binding effect of a parol contract for the sale of land can be made by no one except one of the parties to the contract. Dupuy v. Delaware Ins. Co., 63 F. 680, 1894 U.S. App. LEXIS 2992 (C.C.D. Va. 1894).

Plaintiff need not allege writing. —

In an action at law upon a contract required by the statute of frauds to be in writing, it is not necessary for the plaintiff to allege a writing. Matthews v. LaPrade, 130 Va. 408 , 107 S.E. 795 , 1921 Va. LEXIS 162 (1921).

It is unnecessary to aver in a declaration that a promise to pay the debt of another, which is sued on, is in writing, as it is a question of fact, to be determined by plea and proof. Skinker v. Armstrong, 86 Va. 1011 , 11 S.E. 977 , 1890 Va. LEXIS 80 (1890) (see Eaves v. Vial, 98 Va. 134 , 34 S.E. 978 (1900)).

But if plaintiff vouches the writing in his pleading, then the writing must of itself be sufficient, or else there must be such allegation of facts to be established aliunde as together with the writing will make it sufficient. Matthews v. LaPrade, 130 Va. 408 , 107 S.E. 795 , 1921 Va. LEXIS 162 (1921).

Failure to set out statute in grounds of defense. —

Where there was nothing of record to suggest that the statute of frauds would be involved until plaintiff introduced his evidence, defendant could rely on the statute although not specifically set out in its grounds of defense. Lawson v. States Constr. Co., 193 Va. 513 , 69 S.E.2d 450, 1952 Va. LEXIS 161 (1952).

How defense of statute interposed; general issue. —

At law a defendant may insist upon the benefit of the statute of frauds by the general issue, or in equity, by simply denying in his answer that any such agreement was ever made as that charged in the bill. This general denial will put the plaintiff to the proof of the agreement, and, if it be within the statute of frauds, he must produce a writing at the trial or hearing, unless the defendant waives his right to require it by allowing the agreement to be proved by parol testimony. Argenbright v. Campbell, 13 Va. (3 Hen. & M.) 144, 1808 Va. LEXIS 82 (1808); Eaves v. Vial, 98 Va. 134 , 34 S.E. 978 , 1900 Va. LEXIS 18 (1900).

When statute specially pleaded. —

It is not necessary, in order to set up the statute of frauds as a defense, that it should be specifically pleaded, unless the existence of the agreement sued on is admitted by the answer, or the bill, in addition to the general allegation that it was made, alleges such acts done in part performance, or such other equitable circumstances as would justify the court in enforcing it; in which case the defendant must, it seems, directly traverse the allegation of equitable circumstances at the time he pleads, or by answer insists upon, the statute as preventing the plaintiff’s recovery on the mere verbal agreement. Eaves v. Vial, 98 Va. 134 , 34 S.E. 978 , 1900 Va. LEXIS 18 (1900).

Demurrer raising defense. —

If the declaration sets out a verbal contract which the statute requires to be in writing and bases the right to recover upon the breach of that contract the defense of the statute may properly be raised by demurrer. The same defense can be made, it seems, by plea, but if in such case the demurrer is interposed it properly raises the question and should be sustained. Matthews v. Hileman, 11 Va. L. Reg. 46 (1905).

A party may be estopped by his statements or conduct from pleading the statute of frauds. T. v. T., 216 Va. 867 , 224 S.E.2d 148, 1976 Va. LEXIS 217 (1976).

Equitable estoppel. —

The doctrine of equitable estoppel is a bar to the assertion of a statute of frauds defense. Lance J. Marchiafava, Inc. v. Haft, 777 F.2d 942, 1985 U.S. App. LEXIS 25162 (4th Cir. 1985).

Where plaintiffs, a development company and its president, sought specific performance of a purported contract for the sale of land, the statute of frauds prohibited the enforcement of the purported oral contract and the property owners were not equitably estopped from asserting a defense of the statute of frauds, because there was no evidence of false representation, concealment, or detrimental reliance. Moorman v. Blackstock, Inc., 276 Va. 64 , 661 S.E.2d 404, 2008 Va. LEXIS 76 (2008).

To establish equitable estoppel, it is not necessary to show actual fraud, but only that the person to be estopped has misled another to his prejudice, or that the innocent party acted in reliance upon the conduct or misstatement by the person to be estopped. T. v. T., 216 Va. 867 , 224 S.E.2d 148, 1976 Va. LEXIS 217 (1976).

Elements necessary to establish equitable estoppel, absent a showing of fraud and deception, are a representation, reliance, a change of position and detriment. T. v. T., 216 Va. 867 , 224 S.E.2d 148, 1976 Va. LEXIS 217 (1976).

Estoppel inapplicable where another party fails to perform oral agreement. —

The doctrine of equitable estoppel does not apply to situations in which the party asserting the estoppel has suffered detriment resulting solely from another party’s failure to perform an obligation under the oral agreement. Lance J. Marchiafava, Inc. v. Haft, 777 F.2d 942, 1985 U.S. App. LEXIS 25162 (4th Cir. 1985). But see Nargi v. Camac Corp., 820 F. Supp. 253, 1992 U.S. Dist. LEXIS 21322 (W.D. Va. 1992).

CIRCUIT COURT OPINIONS

This section deals only with the legal enforceability and not with the substantive validity of oral agreements. —

Virginia’s codification of the Statute of Frauds, § 11-2 , does not outlaw or vitiate the underlying agreement, but rather, its effect is only procedural, barring an action on the contract unless it is evidenced by a writing signed by the party to be charged or his agent. Adams v. Doughtie, 63 Va. Cir. 505, 2003 Va. Cir. LEXIS 264 (Portsmouth Dec. 31, 2003).

Oral contract for sale of real estate was unenforceable unless evidenced by written memorandum. —

Oral contract presented nothing more than an acknowledgement of the parties’ agency relationships with their respective real estate agents, and did not amount to a contract for the sale of land, since it wasn’t in writing, and further, lacked the signatures of the contracting parties; where there was nothing ambiguous about the written instrument, parole evidence was not admissible to vary, alter or contradict its clear terms. In re Walker, 2003 Va. Cir. LEXIS 87 (Salem July 28, 2003).

After plaintiff made an unsolicited offer to buy property to the owners’ agent, the agent spoke to one of the three owners, who he claimed told him the contract would be signed; however, one of the owners refused to sell. As there was no clear and convincing evidence that a parol contract was ever made, plaintiff’s breach of contract and specific performance claims were barred by the statute of frauds. Belter v. Norfolk Props. One, 69 Va. Cir. 13, 2005 Va. Cir. LEXIS 258 (Norfolk Mar. 22, 2005).

Essential elements of written memorandum. —

A memorandum, in order to satisfy the Statute of Frauds, must contain: (1) the name of each party to the contract, (2) a description of the land to be conveyed; and (3) the essential terms and conditions, but even where parties to an oral contract agree on the time of performance, courts typically take the view that time of performance is sufficiently minor or nonessential that its absence from the written memorandum is not fatal; thus, a deed was a written memorandum satisfying the Statute of Frauds where the deed executed by a stepfather contained all of the required elements and essential terms of the agreement because (1) the deed contained the names of all parties; (2) the deed contained a thorough description of the land to be conveyed; (3) the deed contained the consideration and price; and (4) although the deed contained no time for performance, the time for performance was no an essential term of the contract. Adams v. Doughtie, 63 Va. Cir. 505, 2003 Va. Cir. LEXIS 264 (Portsmouth Dec. 31, 2003).

Where an undelivered deed expresses the terms of a previous verbal contract between the parties, such a deed is sufficient to take the contract out of the Statute of Frauds, and may properly be made the basis of specific performance, but effect is given to an undelivered deed only where there is some evidence aliunde that there was a meeting of the minds of the grantor and grantee in a completed contract, the terms of which are expressed in the deed. Adams v. Doughtie, 63 Va. Cir. 505, 2003 Va. Cir. LEXIS 264 (Portsmouth Dec. 31, 2003).

An oral promise to devise real estate. —

Demurrers to caretakers’ complaint seeking specific performance of an oral contract for a property owner to devise property to caretakers in return for caretakers providing service and care to the owner were sustained because the contract did not satisfy the statute of frauds; the contract alleged was not definite, certain, and unequivocal because the allegations did not state in an exact manner what was entailed in the service and care that the caretakers were required to give to the owner. Wood v. Corcorran, 89 Va. Cir. 488, 2013 Va. Cir. LEXIS 183 (Nelson County Sept. 12, 2013).

Promise to pay debt of another. —

Claim for the destruction of personal property, that was based upon an oral promise to be responsible for the damages or debts caused to a motor vehicle by another, was barred by the statute of frauds in that the promise was not in writing. Kyung-Hee Kim v. Lambert, 2017 Va. Cir. LEXIS 163 (Amherst County Sept. 5, 2017).

Contracts for sale of land — In general. —

Case involving a written contract for the sale of real estate was not barred by the statute of frauds because there was a detailed written contract between the parties. Thacher v. Greene, 58 Va. Cir. 15, 2001 Va. Cir. LEXIS 386 (Fauquier County June 22, 2001).

Contracts for sale of land — Agreements not to be performed within year. —

Plea in bar based on subdivision 8 of § 11-2 against plaintiff buyers’ action to enforce a contract for the sale of real property was denied where there was no indication in the buyers’ pleading or in the contract that the contract was not to be performed within one year. Thacher v. Greene, 58 Va. Cir. 15, 2001 Va. Cir. LEXIS 386 (Fauquier County June 22, 2001).

Where a lease for more than five years was not in writing, a former tenant’s claim for breach of the lease was defeated by both the statute of frauds codified in § 11-2 , and by the statute of conveyances, codified in § 55-2; therefore, the demurrers thereto were sustained. Flamingo Lounge & Rest., Inc. v. Pure Gold Gentlemen's Club & Sports Bar, L.L.C., 62 Va. Cir. 507, 2003 Va. Cir. LEXIS 306 (Norfolk Sept. 23, 2003).

Contracts for sale of land — Plea in bar denied. —

Where plaintiff buyers sued defendant sellers to enforce a written contract for the sale of real property, and there was an evidentiary issue as to the buyers’ allegation of an agency relationship for the sale of the property, the trial court denied the sellers’ plea in bar under subdivision 6 of § 11-2 that was based on an allegation that the name of one of the sellers was not on the contract and that the sellers owned the property as tenants in the entirety as husband and wife. Thacher v. Greene, 58 Va. Cir. 15, 2001 Va. Cir. LEXIS 386 (Fauquier County June 22, 2001).

Express oral easement. —

Property owner’s claim of an express oral easement was not barred by the statute of frauds, § 11-2 , as the owner asserted that an oral agreement was partially performed. Lee v. Norfolk S. Ry. Co., 72 Va. Cir. 349, 2006 Va. Cir. LEXIS 306 (Salem Dec. 12, 2006).

Oral easement. —

Because an oral easement between a restaurant’s agents and a condominium unit owner regarding the installation of sound attenuation material between two floors of the condominium violated the statute of frauds in § 11-2 , the owner’s breach of contract claim against the agents was barred. Station #2, LLC v. Lynch, 84 Va. Cir. 27, 2011 Va. Cir. LEXIS 203 (Norfolk Dec. 5, 2011).

Broker’s duties. —

Trial court overruled that part of the realtor’s demurrer that alleged the written listing agreement that the broker and realtor had should have set forth in writing the duties that the broker owed to the realtor; since statutory law set forth those duties, there was no reason to require that they be included in a written agreement. Prudential Residential Servs., Ltd. P'ship v. Cash, 70 Va. Cir. 27, 2005 Va. Cir. LEXIS 268 (Amherst County July 15, 2005).

Brokers’ demurrers and pleas in bar were sustained as to the buyers’ third-party complaint because any duties owed to the buyers necessarily originated from the brokers contract, the writings signed by the parties were sufficient evidence of a real estate brokerage agreement, the purchase agreement was sufficient to overcome the bar of the statute of frauds to the breach of contract and breach of implied contract claims, and the purchase agreement and the disclosure agreement were a bar to claims against the brokers for counts pertaining to discovery of covenants and restrictions. Favor v. Quinn, 89 Va. Cir. 143, 2014 Va. Cir. LEXIS 120 (Chesapeake July 23, 2014).

Agreements not to be performed within year — Employment contract. —

Virginia’s statute of frauds, specifically subdivision 8 of § 11-2 , did not apply to the parties’ oral employment contract because defendant could have fully performed defendant’s promise to fund the business in an amount up to $250,000 at any time. Shiple v. Jackson, 56 Va. Cir. 235, 2001 Va. Cir. LEXIS 453 (Richmond June 20, 2001).

Non-compete provision, while not voided by the statute of frauds, was unenforceable where the employees rebutted the presumption that the written contract was renewed yearly and the clause was an unreasonable restriction on competition. Farm Veterinary Servs. v. Novak, 61 Va. Cir. 584, 2001 Va. Cir. LEXIS 511 (Franklin County Sept. 19, 2001).

Agreement was outside the statute of frauds and need not be in writing where the matter dealt with an alleged at-will employment contract and the employer could fully perform the contract within a year by hiring and firing the employee with or without cause within a year. TradeStaff & Co. v. Nogiec, 77 Va. Cir. 77, 2008 Va. Cir. LEXIS 226 (Chesapeake Sept. 4, 2008).

As to unenforceability of contract due to lack of valid compensation term, see Boy Blue, Inc. v. Brown, 74 Va. Cir. 4, 2007 Va. Cir. LEXIS 165 (Essex County Feb. 13, 2007).

Partnership agreement. —

In an action to settle a partnership’s accounts, where no complete and unambiguous writing set forth the terms of the partnership and some writings indicated the existence of loan and repayment agreements, the statute of frauds did not bar the repayment of loans, advances, or payments made by a partner to the partnership. The loans could have been repaid within one year, the lending of funds was an on-going activity, and the loans were not contracts per se, but advances and/or payments made under subsections C and D of § 50-73.99 .Woodie v. Woodie, 73 Va. Cir. 394, 2007 Va. Cir. LEXIS 235 (Roanoke County June 29, 2007).

Defendants’ demurrer was overruled in a partner’s action for breach of a partnership agreement because the statute of frauds did not apply to the facts of the case; the partner alleged that emails formed a written agreement for a partnership, so the complaint was not barred for lack of a writing. Ritger v. Harbour View Self Storage, L.L.C., 85 Va. Cir. 383, 2012 Va. Cir. LEXIS 176 (Chesapeake Sept. 25, 2012).

Joint ventures. —

While it appeared that the statute of frauds applied to the alleged oral contract between joint venturers, it was not a complete bar to recovery because, when it came to the sale of land, courts in equity could relax the statute of frauds and decree specific performance of a parol agreement when the contract was distinctly proved, and part performance in pursuance of the agreement established. Taveira v. Vieira, 2015 Va. Cir. LEXIS 90 (Virginia Beach May 29, 2015).

Agreement to develop architectural plans. —

Plea of statute of frauds was sustained because the golf course developers did not agree by a signed writing to the terms of an oral contract reflected in a letter with the golf course architects, and the oral contract was not to be completed within a year even though the architects argued that the project could be accelerated in order to accomplish completion within one year. JD Architectural Studio v. Maddox, 66 Va. Cir. 10, 2004 Va. Cir. LEXIS 251 (Amherst County May 19, 2004).

Credit agreement for more than $25,000. —

Note debtor executed with creditor clearly fell within the scope of this section because it was a credit agreement in an aggregate amount of more than $25,000 and was one not to be performed within a year. Burdette Smith Group, P.C. v. Elza, 65 Va. Cir. 314, 2004 Va. Cir. LEXIS 215 (Fairfax County Aug. 2, 2004).

Oral agreement concerning payment of joint credit card debt. —

Because either party could have performed their part of the agreement to pay certain joint credit card debts within one year by paying those debts in full, however improbable it might have seemed, the oral contract did not fall within the Statute of Frauds and was enforceable against a breaching party. Jamison v. Lemon, 71 Va. Cir. 279, 2006 Va. Cir. LEXIS 254 (Salem July 14, 2006).

Agent’s apparent authority. —

Purchasers were entitled to specific performance of a contract for sale of property with the bank, as the statute of frauds was satisfied where if there were any restrictions upon the bank’s agent’s authority to be notified of the acceptance of the counteroffer, it was never communicated to the purchasers; thus, the purchasers could rely on the agent’s apparent authority to act on behalf of the bank. Paladini v. Burke & Herbert Bank & Trust, 60 Va. Cir. 7, 2002 Va. Cir. LEXIS 94 (Alexandria Jan. 22, 2002).

Agency established. —

Arbitration provision was enforceable under § 8.01-581.01 , because a valid written power of attorney delivered to the residential home at the time of the execution of the agreement was proof of agency of the executor to sign on behalf of the decedent; the agreement’s failure to nominate arbitrators did not invalidate the agreement. Fink v. Colonial Home, LLC, 81 Va. Cir. 207, 2010 Va. Cir. LEXIS 124 (Portsmouth Sept. 16, 2010).

Guarantee must be in writing. —

Where a guarantee agreement for a corporate loan was not in writing, it was barred by the statute of frauds and accordingly, where respondent guarantor had asserted the defense of set-off against an action seeking contribution by complainant guarantor for other settlements paid beyond the complainant’s share, based on respondent’s assertion that she had advanced funds towards that particular loan, her defense was stricken. Williams v. Kinser, 64 Va. Cir. 128, 2004 Va. Cir. LEXIS 29 (Fairfax County Feb. 24, 2004).

Annuity contract. —

In a suit where the parties orally agreed that a payment by an insured would produce an annuity of over $25,000 per year, signatures by insurance agents on an electronic mail and on a letter satisfied the memorandum requirement of the statute of frauds; thus, the statute did not prevent the enforcement of the annuity contract. Moreover, there had been partial performance of the oral contract. Clarke v. Collins, 73 Va. Cir. 12, 2006 Va. Cir. LEXIS 189 (Lynchburg Oct. 4, 2006).

Assumption of a contract. —

Plaintiff’s complaint alleged that a contractor assumed another builder’s contract at a mortgage company’s behest, but did not allege that this assumption was in writing, which was required under § 11-2 to make the assumption enforceable. Therefore, the contractor’s demurrer to plaintiff’s breach of contract claim was sustained. Mack v. Orion Inv. Corp., 2002 Va. Cir. LEXIS 468 (Norfolk Mar. 5, 2002).

Statements too vague to enforce as contracts or amendments to contracts. —

Court did not find that the express oral agreement between a lawyer and a law firm was modified by the lawyer’s alleged statement to the firm’s partner that he would “take care” of them (the firm) with respect to certain expense reimbursements. That statement, if made, was too vague to be enforceable and was totally inconsistent with the lawyer’s reason for joining the firm. Lawson & Frank, P.C. v. Bettius, 66 Va. Cir. 93, 2004 Va. Cir. LEXIS 319 (Arlington County Oct. 7, 2004).

Guarantees could not be modified or waived orally. —

Because guarantees were required to be in writing pursuant to the statute of frauds, subdivision 8 of § 11-2 , they could not be modified or waived orally; the guarantees specifically prohibited oral modification and waiver, and there could be no parol evidence or sufficient consideration to show that any alleged oral waiver or modification rescinded that provision. Sun Hotel v. Summitbridge Credit Invs. III, LLC, 86 Va. Cir. 189, 2013 Va. Cir. LEXIS 4 (Fairfax County Jan. 23, 2013).

Judicial sales not subject to statute of frauds. —

Court overruled the judicial sale buyer’s statute of fraud’s defense since the judicial sale was not subject to the statute of frauds, and, even if it was, special commissioner auctioneer’s memorandum of sale was a sufficient memorandum. The court confirmed sale to buyer and further noted that by being a bidder at the auction, the buyer became a party to the proceeding of which the auction was a part and became subject to the court’s jurisdiction. Dygert v. Horizons, LLC, 66 Va. Cir. 175, 2004 Va. Cir. LEXIS 259 (Nelson County Nov. 1, 2004).

Resulting trusts and constructive trusts. —

Trial court found that resulting trusts and constructive trusts were exceptions to the requirement contained in subdivision 6 that contracts for the sale of real estate be in writing, and held that a promisee who claimed that a property owner breached her promise to share title to real property with the promisee, even though he paid half of the downpayment on the house and also paid part of the mortgage and utilities, was entitled to a trial on his claim for relief under theories of resulting trust and constructive trust. Steele v. Batalo, 62 Va. Cir. 102, 2003 Va. Cir. LEXIS 286 (Richmond June 3, 2003).

Equitable contract theories not enforceable where express contract. —

Lawyer and a law firm orally and expressly agreed (1) how to split their fees after he joined the firm, and (2) that he could use the firm’s resources, including its associates, to conclude the damages portion of a major lawsuit he was working on when he joined the firm and he did not have to split its fee or reimburse the firm for its resources that he used, so the court could and did not enforce firm’s inconsistent equitable contract theories of quantum meruit and unjust enrichment to require reimbursement. Lawson & Frank, P.C. v. Bettius, 66 Va. Cir. 93, 2004 Va. Cir. LEXIS 319 (Arlington County Oct. 7, 2004).

Acts taking contract out of Statute of Frauds. —

Older brother’s claim to certain farm equipment in return for providing specific lifetime assistance to his mother and father on their farm was upheld; the brother’s actions over the intervening years of, among other things, maintaining the farm equipment and building an addition onto his sister’s house for his parents to live in, was sufficient part performance to avoid the bar of the Statute of Frauds. Grant v. Grant, 67 Va. Cir. 412, 2005 Va. Cir. LEXIS 159 (Roanoke County June 15, 2005).

Because an unwritten agreement was proven by continued performance, the statute of frauds did not bar its enforcement. Fernandez v. Fernandez, 99 Va. Cir. 297, 2018 Va. Cir. LEXIS 113 (Fairfax County July 1, 2018).

Part performance of loan contract. —

Since the lenders loaned money to the debtor and then assigned their rights to the assignee (the creditor), the lenders part performed their loan contracts to the debtor to make the statute of frauds inapplicable to the loans; and, since the creditor relied on the validity of those loans (and fulfilled the requirement of alleging facts, written evidence under § 11-2 , to take its claim outside the confines of the Statute of Frauds) when it bought, and was assigned, those loans, the creditor could enforce the loans against the debtor. Therefore, the debtor’s demurrer based on the Statute of Frauds to the creditor’s motion for judgment on its claim of assumpsit was overruled. Net Connection v. GWBEH, L.L.C., 67 Va. Cir. 150, 2005 Va. Cir. LEXIS 35 (Fairfax County Mar. 8, 2005).

Equitable estoppel. —

Argument that the business owner was equitably estopped from asserting the statute of frauds was rejected, as the evidence was insufficient to show that the business owner falsely represented his willingness, or falsely concealed his unwillingness, to sell, before the worker took employment in the dealership. Burrell v. Universal Ford Sales, Inc., 87 Va. Cir. 181, 2013 Va. Cir. LEXIS 166 (Henrico County Oct. 10, 2013).

Part performance generally. —

Part performance did not defeat the statute of frauds defense, as the oral agreement was formed but not performed. Burrell v. Universal Ford Sales, Inc., 87 Va. Cir. 181, 2013 Va. Cir. LEXIS 166 (Henrico County Oct. 10, 2013).

Because a lessee’s inclusion of a count for recovery of part performance in its second amended complaint ran counter to the circuit court’s prior ruling and rationale, that count could not survive demurrer; in its prior ruling, the circuit court sustained the lessors’ demurrer to the lessee’s breach of contract claim, holding that the partial performance exception to the statute of frauds did not apply. Ticonderoga Farms, LLC v. Knop, 97 Va. Cir. 479, 2017 Va. Cir. LEXIS 157 (Loudoun County Aug. 23, 2017).

Demurrer was denied on the landowners’ breach of contract claim against the city and school official given the submitted writings and correspondence by persons who inferentially had the authority to make them, the alleged lighting agreement was definite in its terms in that it unequivocally provided that the school board and the city would not build permanent lights at a high school athletic stadium, and the landowners sufficiently alleged that they relied upon the performance of the agreement. Lewis v. City of Alexandria, 102 Va. Cir. 93, 2019 Va. Cir. LEXIS 205 (Alexandria Apr. 17, 2019).

Claim by a subcontractor and his wife (jointly, the creditors) for an oral contract and unjust enrichment survived the three-year statute of limitations and the one-year statute of frauds because the actions by the debtors to pay a premium above the costs of construction and then to work on a build out were consistent and corroborate the existence of an alleged oral contract, and, up until the debtors’ repudiation, the creditors believed there was an agreement and were arguably expecting compensation, the creditors did more than pay down the debt, they obtained a release and discharge from the lender. Cove v. Wallen, 104 Va. Cir. 6, 2019 Va. Cir. LEXIS 1204 (Fairfax County July 31, 2019).

Statute of frauds satisfied. —

Because the historical restoration and preservation commission was not a necessary party to a purchase agreement that granted a preservation easement in favor of the commission, the statute of frauds was not implicated as the agreement was in writing and signed by the necessary parties. Suthanthiran v. Bd. of Zoning Appeals, 2007 Va. Cir. LEXIS 248 (Alexandria May 31, 2007).

Although an assignee’s breach of contract action was not barred by the statute of frauds under subdivision 9 of § 11-2 because it was clear from the terms of a repayment contract document that debtors intended to authenticate the document when they signed it and had it notarized, the action could have been barred by the statute of limitations under § 8.01-246 as the terms of an oral contract still had to be established. Faison v. Hughson, 80 Va. Cir. 96, 2010 Va. Cir. LEXIS 20 (Roanoke Jan. 22, 2010).

Statute of frauds exception. —

In a case in which plaintiff alleged it had an oral lease to plant and harvest trees on defendants’ land, the circuit court concluded that plaintiff’s claims did not fall under any statute of fraud exception. Ticonderoga Farms, LLC v. Knop, 97 Va. Cir. 479, 2016 Va. Cir. LEXIS 250 (Loudoun County June 3, 2016).

Evidence sufficient. —

Oral contract was excluded from the Statute of Frauds and enforcement of the oral contract was justified as: (1) the daily care and services rendered by a son to his father for almost three and a half years were extensive, complete, continuous and, for the most part, provided without help from others; (2) the care and services furnished constituted substantial performance of the agreement; and (3) a refusal of the full execution of the agreement would operate a fraud on the son. Neese v. Mark K. Neese, 2010 Va. Cir. LEXIS 52 (Roanoke County Apr. 28, 2010).

Oral modification of written lease agreement. —

Parties’ oral agreement and attempted modification of their written lease was unenforceable as an express contract under Virginia Statute of Frauds. However, the conduct of the parties and the use of the leased space by the tenant constituted a contract implied-in-law and/or a contract implied-in-fact that required the tenant to pay an additional rent for the additional space that the tenant began to occupy in the lease premises. Am. British Bus. Alliance, Inc. v. Chesapeake Partners, LLC, 100 Va. Cir. 204, 2018 Va. Cir. LEXIS 356 (Richmond Oct. 15, 2018).

Court order incorporating oral agreement. —

When a court’s ruling based on sworn testimony of a full and complete oral child custody and support modification agreement between divorced parties, on the record, accepted by the court as reasonable, the court’s acceptance of a proposed order as a memorialization of the court’s prior ruling from the bench was no longer considered a mere oral agreement between parties. Once entered, the order was enforceable. Moffett v. Jones, 104 Va. Cir. 309, 2020 Va. Cir. LEXIS 29 (Fairfax County Mar. 9, 2020).

Illustrative cases. —

Statute of frauds did not apply in an action between the buyers and sellers of a business, where the buyers were not seeking to enforce the alleged agreement to assign the lease; thus, the plea in bar filed by the sellers was overruled. Torrez v. Comacho, 66 Va. Cir. 161, 2004 Va. Cir. LEXIS 312 (Fairfax County Oct. 26, 2004).

Oral extension agreements to sell land were unenforceable as they violated the Virginia Statute of Frauds, subdivisions 6 and 7 of § 11-2 , since they were not in writing or signed by the parties; an amendment to the purchase agreement was a novation between the parties, and was not such a writing that would prevent the Statute of Frauds from making the oral extension agreements unenforceable. Hendrick v. Boone & Co., 2004 Va. Cir. LEXIS 388 (Roanoke County Apr. 7, 2004).

Statute of frauds barred the worker’s claim for breach of contract, given that the transaction with the business owner would have required more than a year to perform, there had to be a signed writing, and there was none. Burrell v. Universal Ford Sales, Inc., 87 Va. Cir. 181, 2013 Va. Cir. LEXIS 166 (Henrico County Oct. 10, 2013).

Rulings sustaining the demurrer to a lessee’s breach of contract claim on the grounds of the statute of frauds were still valid and binding because none of the additional allegations included in the lessee’s second amended complaint altered those rulings; the writings the lessee relied upon were insufficient to overcome the lessors’ plea of the statute of frauds because they did not contain sufficient written evidence of an oral agreement between the parties to remove the bar of the statute of frauds. Ticonderoga Farms, LLC v. Knop, 97 Va. Cir. 479, 2017 Va. Cir. LEXIS 157 (Loudoun County Aug. 23, 2017).

Alleged guarantor was entitled to sanctions against lawyers and a law firm, who sued based on an alleged guarantee of another’s obligation to pay attorney’s fees because reasonable inquiry would have revealed the alleged guarantee was unenforceable, as the guarantee was a promise to answer for the debt of another subject to the Statute of Frauds, since the alleged guarantor’s statement was an undertaking of the same obligations owed by the other to the law firm, which had to be memorialized in writing and signed by the alleged guarantor, but the statement was not so memorialized, so the claim against the alleged guarantor was not warranted. Goldman v. Nat'l Slavery Museum, 96 Va. Cir. 356, 2017 Va. Cir. LEXIS 301 (Richmond Sept. 15, 2017).

I.In General.

Constitutionality. —

The refusal of a state to permit the enforcement in its courts of a gambling contract, as is stated in this section, presents no constitutional question, state or federal. Kennedy v. Annandale Boys Club, Inc., 221 Va. 504 , 272 S.E.2d 38, 1980 Va. LEXIS 271 (1980).

The mandate of the Full Faith and Credit statute prevails over Virginia’s strongly-expressed policy which prohibits the enforcement of gambling debts. Coghill v. Boardwalk Regency Corp., 240 Va. 230 , 396 S.E.2d 838, 1990 Va. LEXIS 113 (1990).

The legislature’s refusal to permit enforcement in its courts of a gambling contract presents no constitutional question, state or federal. Resorts Int'l Hotel, Inc. v. Agresta, 569 F. Supp. 24, 1983 U.S. Dist. LEXIS 14879 (E.D. Va. 1983), aff'd, 725 F.2d 676 (4th Cir. 1984).

Legislative intent. —

The language of this section makes it plain that the General Assembly has not made the state court system available to unpaid gambling winners. There can be no claim made on any contract founded upon gaming. Resorts Int'l Hotel, Inc. v. Agresta, 569 F. Supp. 24, 1983 U.S. Dist. LEXIS 14879 (E.D. Va. 1983), aff'd, 725 F.2d 676 (4th Cir. 1984).

The public policy of the Commonwealth expressed through statutory provisions has been since 1740 that all promises, agreements, mortgages, securities, and the like, where the consideration was based on wagers, are void. Resorts Int'l Hotel, Inc. v. Agresta, 569 F. Supp. 24, 1983 U.S. Dist. LEXIS 14879 (E.D. Va. 1983), aff'd, 725 F.2d 676 (4th Cir. 1984).

Section should be construed strictly. Resorts Int'l Hotel, Inc. v. Agresta, 569 F. Supp. 24, 1983 U.S. Dist. LEXIS 14879 (E.D. Va. 1983), aff'd, 725 F.2d 676 (4th Cir. 1984).

A contract is not a contract of wager when all the profit or loss is to be on one of the parties. Brown v. Speyers, 61 Va. (20 Gratt.) 296, 1871 Va. LEXIS 6 (1871).

Where the expectancy of hitting the lottery jackpot was not just the material cause but the sole cause of the agreement, and the whole reason for entering into the agreement was to pool funds so that each player could increase his chances of winning money in the lottery, the agreement constituted a gaming contract within the meaning of this section. Hughes v. Cole, 251 Va. 3 , 465 S.E.2d 820, 1996 Va. LEXIS 16 (1996) (decided prior to 1998 amendment to this section).

Bond given for gaming consideration is void. —

M. having won money of W. at cards, and J. having won the same sum of M., the bond of W. given at the request of M. to J. for that sum is void. Woodson v. Barrett, 12 Va. (2 Hen. & M.) 80, 1808 Va. LEXIS 22 (1808).

And money lent to be bet upon an election is not recoverable by suit. Machir v. Moore, 43 Va. (2 Gratt.) 257, 1845 Va. LEXIS 42 (1845).

But loan to pay gambling obligation is valid. —

It would not be more unlawful to lend money to a man to be used in paying an old obligation, which he could resist under this section, than it would be to lend him money to pay an old debt barred by time. Krake v. Alexander, 86 Va. 206 , 9 S.E. 991 , 1889 Va. LEXIS 27 (1889).

There was judgment against surety on note for money borrowed to be used as margins on grain and pork options. Surety obtained money to pay judgment, securing lender by trust deed on land. Lender was not shown to have had any connection with, or knowledge of, the options. On a creditors’ bill to take an account of liens on surety’s land it was held that the trust deed to lender was not void as against the other creditors, under this section, as being based on a gambling consideration. Krake v. Alexander, 86 Va. 206 , 9 S.E. 991 , 1889 Va. LEXIS 27 (1889).

As is discount of note where proceeds used for gambling in stocks, if bank had no notice of object. —

The fact that the indorser of a note knew that the proceeds of the note were to be used by the maker in gambling in stocks cannot affect the rights of the bank which discounted the note for the maker in ignorance of the use to be made of the money. Such a discount by the bank is not within the purview of this section and the note is not affected by the circumstances that it subsequently passed into the hands of the indorser, who had notice of the object to which the proceeds were to be applied. Citizens' Nat'l Bank v. McDannald, 116 Va. 834 , 83 S.E. 389 , 1914 Va. LEXIS 95 (1914).

Notes given for gambling losses are invalid, even in the hands of a holder in due course. Glassman v. FDIC, 210 Va. 650 , 173 S.E.2d 843, 1970 Va. LEXIS 177 (1970).

Enforcement of a note executed in order to pay a gambling debt incurred in another state would be against the express public policy and positive law of the Commonwealth. Resorts Int'l Hotel, Inc. v. Agresta, 569 F. Supp. 24, 1983 U.S. Dist. LEXIS 14879 (E.D. Va. 1983), aff'd, 725 F.2d 676 (4th Cir. 1984).

Rescission or restitution not available remedy for gambling contract parties. —

As gambling contracts are illegal or immoral, Virginia law simply leaves the litigants in the plight in which they have seen fit to place themselves without undertaking to balance benefits or burdens, and a party to such contracts cannot sue for rescission or restitution. Rahmani v. Resorts Int'l Hotel, Inc., 20 F. Supp. 2d 932, 1998 U.S. Dist. LEXIS 14236 (E.D. Va. 1998), aff'd, 182 F.3d 909, 1999 U.S. App. LEXIS 23421 (4th Cir. 1999).

II.Speculative Transactions in Stocks or Commodities.

Validity depends upon intention to make delivery. —

A contract for the purchase of “future-delivery” cotton, neither the purchase nor delivery of actual cotton being contemplated by the parties, but the settlement in respect to which is to be upon the basis of the mere “difference” between the contract price and the market price of said cotton futures, according to the fluctuations in the market, is a wagering contract and void under this section. Embrey v. Jemison, 131 U.S. 336, 9 S. Ct. 776, 33 L. Ed. 172, 1889 U.S. LEXIS 1825 (1889).

III.Wills and Administration.

Direction to pay debts is not applicable to gaming debt. —

Testator’s direction that all his just debts be paid out of the sales of certain lands does not authorize the payment of a gaming debt of his out of the proceeds of such sales. Carter's Ex'rs v. Cutting, 19 Va. (5 Munf) 223, 1816 Va. LEXIS 39 (1816).

And payment of gaming debt is not a credit to executor. —

An executor ought not to be allowed a credit for paying a debt of his testator, appearing, on the face of the written instrument intended to secure it, to have been for money won at unlawful gaming. Carter's Ex'rs v. Cutting, 19 Va. (5 Munf) 223, 1816 Va. LEXIS 39 (1816).

IV.Equitable Relief.

Equity may relieve against gaming consideration. —

Where part of a bond is on gaming consideration, and the other part on lawful consideration, equity will relieve against the part which is vicious, and sustain that which is good; the obligor being plaintiff. Skipwith v. Strother, 24 Va. (3 Rand.) 214, 1825 Va. LEXIS 16 (1825).

And against judgment on gaming debt. —

A court of equity has jurisdiction to relieve against a judgment founded on a gaming debt, although the party failed to defend himself at law, and gives no good reason for such failure. Skipwith v. Strother, 24 Va. (3 Rand.) 214 (1825), cited in White v. Washington, 1848 Va. LEXIS 50, 46 Va. (5 Gratt.) 645 (1848).

A judgment was obtained against the obligor in a bond given for a gaming consideration, and a writ of elegit was issued against his lands. A suit was brought by the assignee of the bond against the sheriff for an error committed in executing such writ, and a judgment obtained. It was held that a court of equity will relieve the obligor, and the sheriff also, on the ground of the turpitude of the original transaction. Woodson v. Barrett, 12 Va. (2 Hen. & M.) 80, 1808 Va. LEXIS 22 (1808).

Although no effort was made to obtain new trial in law court. —

Where defendant, in an action at law on a promise founded on a gaming consideration, was surprised at the trial, and there was a judgment against him, he may come into equity for relief, though he made no effort to obtain a new trial in the law court. White v. Washington, 46 Va. (5 Gratt.) 645, 1848 Va. LEXIS 50 (1848).