36-202 Agreements; writing required, when.
36-202. Agreements; writing required, when.In the following cases every agreement shall be void, unless such agreement, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged therewith: (1) Every agreement that, by its terms, is not to be performed within one year from the making thereof; (2) every special promise to answer for the debt, default, or misdoings of another person; (3) every agreement, promise or undertaking made upon consideration of marriage, except mutual promises to marry; (4) every special promise by an executor or administrator to answer damages out of his own estate; and (5) every agreement for the repurchase of corporate stocks, bonds or other securities. SourceR.S.1866, c. 43, § 67, p. 293; R.S.1913, § 2630; C.S.1922, § 2458; C.S.1929, § 36-202; Laws 1937, c. 88, § 1, p. 289; C.S.Supp.,1941, § 36-202; R.S.1943, § 36-202.Annotations1. Agreements not to be performed within one year2. Contracts of guaranty3. Contracts of marriage4. Miscellaneous1. Agreements not to be performed within one yearTo state the rule in positive terms, an oral agreement is valid under subsection (1) of this section if it is capable of being performed within 1 year of the making of the contract. Rath v. Selection Research, Inc., 246 Neb. 340, 519 N.W.2d 503 (1994).There was no support in the evidence for defense that contract was void for the reason that performance was not required within one year. Maseberg v. Mercer, 176 Neb. 668, 127 N.W.2d 208 (1964).A contract is not within the statute of frauds merely because it might not be performed within a year. Empson v. Deuel County State Bank, 134 Neb. 597, 279 N.W. 293 (1938).Cashier and managing officer of bank who endorsed note to it was estopped to set up defense of statute of frauds based upon claim that he had not signed extension agreement and payment was not to be made within one year. Atlas Corporation v. Magdanz, 130 Neb. 519, 265 N.W. 743 (1936).Seller's oral agreement to repurchase bonds is not void unless terms indicate that it is not to be performed within one year from the making thereof. Johnson v. First Trust Co., 130 Neb. 77, 264 N.W. 152 (1936).Oral agreements wholly performed on one side within a year are not void under statute of frauds. In re of Black's Estate, Robinson v. Wittera, 125 Neb. 75, 249 N.W. 84 (1933).Oral agreement is not void unless its terms indicate that it is not to be performed within one year from the making thereof. Johnson v. First Trust Co., 125 Neb. 26, 248 N.W. 815 (1933).A cash sale of stock upon an agreement whereby the seller undertakes to repurchase at the buyer's option constitutes an entire and indivisible transaction sufficiently performed to take it out of the provisions of this section even though the repurchase agreement is oral. Grotte v. Rachman, 114 Neb. 284, 207 N.W. 204 (1926); Stratbucker v. Bankers Realty Inv. Co., 107 Neb. 194, 185 N.W. 271 (1921).Section does not refer to such contracts as may possibly or probably not be performed within one year. Simmons v. Simmons, 95 Neb. 607, 146 N.W. 951 (1914); Carter White Lead Co. v. Kinlin, 47 Neb. 409, 66 N.W. 536 (1896).Where fully performed by both parties, contract is enforceable, though incidental matters extend several years. Platte Independent Tel. Co. v. Leigh Independent Tel. Co., 80 Neb. 41, 116 N.W. 511 (1907).Agreement for services for one year, to commence day after contract is made, is void. Riiff v. Riibe, 68 Neb. 543, 94 N.W. 517 (1903).Oral promise made to marry a girl, then fifteen, when she became eighteen, is unenforceable. Barge v. Haslan, 63 Neb. 296, 88 N.W. 516 (1901).Contract made April 10 to continue one year from April 12 is void. Reynolds v. 1st Nat. Bank of Wymore, 62 Neb. 747, 87 N.W. 912 (1901).Oral contract is valid when, by fair and reasonable construction, it is capable of being performed within year. Reynolds v. 1st Nat. Bank of Wymore, 62 Neb. 747, 87 N.W. 912 (1901); Powder River Live Stock Co. v. Lamb, 38 Neb. 339, 56 N.W. 1019 (1893).Full performance on one side within the year takes contract out of statute. Kendall v. Garneau, 55 Neb. 403, 75 N.W. 852 (1898).Contract of employment as long as works were kept or until plaintiff saw fit to quit, is valid. Carter White Lead Co. v. Kinlin, 47 Neb. 409, 66 N.W. 536 (1896).Contract of hiring made December 19 for one year commencing January 1 following, is void, and is not taken out of statute because of monthly payments. K. C. W. & N. W. R. Co. v. Conlee, 43 Neb. 121, 61 N.W. 111 (1894).Contract that party shall pay market price on any day selected by other, between and within two years, is not within statute. Powder River Live Stock Co. v. Lamb, 38 Neb. 339, 56 N.W. 1019 (1893).Contract is not void unless its very terms show it is not to be completed in a year. Kiene v. Shaeffing, 33 Neb. 21, 49 N.W. 773 (1891).Contract of landlord to purchase building erected by tenant, at any time tenant might give up possession, may be performed in one year. Connolly v. Giddings, 24 Neb. 131, 37 N.W. 939 (1888).Contract enforceable when only signed by defendant where court found both parties had ratified it by acting under its provisions over a long period of time. Heaton Distributing Co., Inc. v. Union Tank Car Co., 387 F.2d 477 (8th Cir. 1967).Oral contract of employment for a term of less than one year is not required to be in writing. Wilkins v. Kendle, 287 F.2d 201 (8th Cir. 1961).2. Contracts of guarantyA guarantor's promise, entered into independently of the original transaction, must be in writing and supported by a consideration distinct from that of the original debt. Spittler v. Nicola, 239 Neb. 972, 479 N.W.2d 803 (1992).Where the leading object or main purpose of a party promising to pay the debts of another is to promote his own interest, and not to become a guarantor, and the promise is made on sufficient consideration the statute of frauds is not applicable and the promise will be valid although not in writing. Branham v. McGinnis, 203 Neb. 664, 280 N.W.2d 47 (1979).Oral agreement to pay primary debt of another antecedently contracted is within statute of frauds. Otto Gas, Inc. v. Stewart, 160 Neb. 200, 69 N.W.2d 545 (1955).Where owner promised to pay subcontractor if contractor did not, promise was collateral and within statute. King v. Schmall, 156 Neb. 635, 57 N.W.2d 287 (1953).Promise by father to pay divorced wife of son part of amount adjudged due from son for child support was collateral and within statute. In re Estate of Allen, 147 Neb. 909, 25 N.W.2d 757 (1947).Oral agreement to pay a primary debt of another antecedently contracted, without new consideration moving to the promisor, is within the statute of frauds. Johnson v. Anderson, 140 Neb. 78, 299 N.W. 343 (1941).Where goods, money or services are furnished to a third person at the request and on the credit of the promisor, the undertaking is original and the promisor will be liable although the promise is not in writing. Elson v. Nelson, 132 Neb. 532, 272 N.W. 551 (1937).Where evidence is conflicting on whether promise to pay for merchandise furnished another was an original promise or collateral undertaking, question should be left to jury. Farmers Grain, Lumber & Coal Co. v. Taylor, 119 Neb. 216, 228 N.W. 253 (1929).Where another remains liable for debt, promise is within statute, though it was inducement for services rendered debtor. Union Loan & Savings Assn. v. Johnson, 118 Neb. 17, 223 N.W. 467 (1929); Williams v. Auten, 68 Neb. 26, 93 N.W. 943 (1903); Swigart v. Gentert, 63 Neb. 157, 88 N.W. 159 (1901).Oral promise of payee, based on new consideration, to pay purchase-money notes transferred by him, is valid. Stanton Nat. Bank v. Swallow, 113 Neb. 336, 203 N.W. 561 (1925).Oral promise of officer of corporation to purchaser of stock that he would repay purchase price at any time is valid. Griffin v. Bankers' Realty Inv. Co., 105 Neb. 419, 181 N.W. 169 (1920); Trenholm v. Kloepper, 88 Neb. 236, 129 N.W. 436 (1911).Promise by president that bank would accept notes held by purchaser of stock and indemnify purchaser against action on endorsement is valid. Patrick v. Barker, 78 Neb. 823, 112 N.W. 358 (1907).Promise to pay debt of partner if levy on partnership property is released is valid. Swayne v. Hill, 59 Neb. 652, 81 N.W. 855 (1900).Where leading purpose of promisor is to promote some interest of his own, if promise is on sufficient consideration, it is enforceable. Swayne v. Hill, 59 Neb. 652, 81 N.W. 855 (1900); Fitzgerald v. Morrissey, 14 Neb. 198, 15 N.W. 233 (1883).Promise by beneficiary in fraternal insurance policy to pay debt of insured creates no trust and is unenforceable. Fisher v. Donovan, 57 Neb. 361, 77 N.W. 778 (1899).Verbal guaranty of payment, by agents, where principal has no legal existence is valid. Learn v. Upstill, 52 Neb. 271, 72 N.W. 213 (1897).A promise to indemnify a person if he will become security for debt due to a third person is an original promise and not within the statute. Minick v. Huff, 41 Neb. 516, 59 N.W. 795 (1894).Promise by mortgagee to pay debt due one in possession of property of mortgagor under verbal lien, if property is surrendered, is enforceable where surrender is benefit to promisor. Joseph v. Smith, 39 Neb. 259, 57 N.W. 1012 (1894).A promise that he would protect company for goods to be furnished another is valid. Sheehy v. Fulton, 38 Neb. 691, 57 N.W. 395 (1894).Oral promise of contractor to pay for material to be furnished subcontractor is valid. Barras v. Pomeroy Coal Co., 38 Neb. 311, 56 N.W. 890 (1893).An oral promise of buyer of livery stable to pay wages which seller owed employee is valid. Barnett v. Pratt, 37 Neb. 349, 55 N.W. 1050 (1893).Where goods or services are furnished to third person on request and credit of promisor, contract is valid. Peyson v. Conniff, 32 Neb. 269, 49 N.W. 340 (1891).Where credit is given contemporaneously with, or after, and upon faith of oral promise to pay for goods delivered to another, promisor is liable. Lindsey v. Heaton, 27 Neb. 662, 43 N.W. 420 (1889).Promise by creditor, to whom insolvent debtor conveyed property, that he would pay debt due another if not disturbed in possession of goods is valid. Rogers v. Empkie Hardware Co., 24 Neb. 653, 39 N.W. 844 (1888).A promise of son to pay physician for attending his mother is valid. Clay v. Tyson, 19 Neb. 530, 26 N.W. 240 (1886).Oral promise to pay debt in consideration that property be transferred by debtor to promisor is valid. Clay v. Tyson, 19 Neb. 530, 26 N.W. 240 (1886).Where owner of property, on which building was being erected, orally promised employee of contractor that he would see that the debt the contractor owed him was paid, it was a collateral undertaking and void. Morrissey v. Kinsey, 16 Neb. 17, 19 N.W. 454 (1884).Promise of husband to pay for stove purchased by wife, after she had requested seller to take it back, was an original undertaking and valid. Palmer v. Witcherly, 15 Neb. 98, 17 N.W. 364 (1883).Oral promise to pay another's debt, as part consideration for property sold promisor, is valid. Clopper v. Poland, 12 Neb. 69, 10 N.W. 538 (1881).I will see that you are paid is promise to answer for another's debt for past and future services. Rose v. O'Linn, 10 Neb. 364, 6 N.W. 430 (1880).Promise by defendant to pay attorney fees of plaintiff on dismissal of action is valid. Weilage v. Abbott, 3 Neb. Unof. 157, 90 N.W. 1128 (1902).Promise by grantee to pay part of consideration to creditor of grantor is enforceable by creditor. Dodd v. Skelton, 2 Neb. Unof. 475, 89 N.W. 297 (1902).3. Contracts of marriageOral contract in consideration of marriage is void. Mallett v. Grunke, 107 Neb. 173, 185 N.W. 310 (1921); Fischer v. Fischer, 106 Neb. 477, 184 N.W. 116 (1921).Oral agreement by man that in consideration of marriage he will make child of woman equal heir with others is void. Fischer v. Fischer, 106 Neb. 477, 184 N.W. 116 (1921).If marriage is not to be performed within year, promise is unenforceable. Barge v. Haslam, 63 Neb. 296, 88 N.W. 516 (1901).4. Miscellaneous"Memorandum" consisting of classified advertisement of job in newspaper, which did not contain essential terms of contract, such as salary, held insufficient to take contract out of provision of this section. McBride v. City of McCook, 212 Neb. 112, 321 N.W.2d 905 (1982).It is error to instruct on a theory not raised by the pleadings, over objection, not having afforded opponent opportunity to plead to that theory or present evidence thereon. Montgomery v. Quantum Labs, Inc., 198 Neb. 160, 251 N.W.2d 892 (1977).An agreement without consideration is nudum pactum and unenforceable whether within or without statute of frauds. Grimes v. Baker, 133 Neb. 517, 275 N.W. 860 (1937).Written promise for another's debt default or misdoings is void as to person whose name is subscribed thereto by one not authorized in writing. Massachusetts Bonding & Ins. Co. v. Nichols, 117 Neb. 93, 219 N.W. 837 (1928).Note and mortgage are sufficient memorandum of promise to secure debt of another. McLanahan v. Chamberlain, 85 Neb. 850, 124 N.W. 684 (1910).Subscribed means signed and signature may be any place on instrument. Myers v. Moore, 78 Neb. 448, 110 N.W. 989 (1907).Oral acknowledgment of verbal contract, made within the year for performance, does not validate. Haslam v. Barge, 69 Neb. 644, 96 N.W. 245 (1903).Defense may be raised under general denial. Riiff v. Riibe, 68 Neb. 543, 94 N.W. 517 (1903).Memorandum executed subsequent to oral promise needs no new consideration. Sheehy v. Fulton, 38 Neb. 691, 57 N.W. 395 (1894).Letter to judgment creditor, by one holding debtor's property, is sufficient memorandum. Kenney v. Hews, 26 Neb. 213, 41 N.W. 1006 (1889).Contracts performed are not within statute. Milner v. Harris, 1 Neb. Unof. 584, 95 N.W. 682 (1901).Memorandum of an agreement was insufficient to take the contract out of the statute of frauds because it did not contain the essential elements of the contract. Ancom, Inc. v. E. R. Squibb & Sons, Inc., 658 F.2d 650 (8th Cir. 1981).