667 P2D 165 - Schachle v. Rayburn

RABINOWITZ, Justice,

¶1dissenting.

¶2I disagree with the court’s holding that the Schachles were entitled to partial summary judgment denying contractual relief to the Rayburns to the extent that the parcel is alleged to exceed the dimensions now conceded by them. More particularly, I am in disagreement with the court’s conclusion that the absence of a description of the lot size in the earnest money agreement is a fatal defect rendering the contract unenforceable as a matter of law. The majority holds that a memorandum sufficient to take a land contract out of the statute of frauds must specifically describe the quantity of the land involved. In my view, this is inconsistent with Fleckenstein v. Faccio, 619 P.2d 1016, 1020-21 (Alaska 1980). There we stated that the note or memorandum “need not be formal or complete.”1

¶3If the oral and written evidence together establish the existence of all the essential terms of the contract, the contract is enforceable under Faccio.2Thus, under Fac-cio the parties’ oral testimony is extremely relevant to a determination of whether the Rayburns were entitled to a conveyance of one and one-quarter acres. Drawing factual inferences in their favor, I conclude that the Schachles were not entitled to partial summary judgment.

¶4. In Faccio, the evidence showed that the oral agreement did not encompass a description of the “precise subject matter.” We concluded that the reference to “ ‘property between Nick Cekin and Larry & Helen Fleckenstein house,’ ” in the context of the positions taken by the parties in the case, clearly identified the property. 619 P.2d at 1021.

¶5. [A] writing may be sufficient even though it is cryptic, abbreviated, and incomplete. Faccio, 619 P.2d at 1021 n. 18, quoting 2 A. Corbin, Corbin on Contracts § 498 at 683 (1950). We noted that Corbin further emphasizes this point in reference to the adequacy of subject matter identification:

[I]f the court is convinced that no fraudulent substitution of property is being attempted and that the land actually agreed upon has been clearly established by all the evidence, including the written memorandum, the surrounding circumstances, and the oral testimony, little time should be wasted in listening to argument that the written description is inadequate.

¶6Faccio, 619 P.2d at 1021 n. 18, quoting 2 Corbin, supra, § 505 at 718.