Issue: WHETHER THE ISSUE OF STATUTE OF FRAUDS’ APPLICATION TO A CASE MAY BE PROPERLY DISPOSED OF BY DEMURRER IN A REAL ESTATE COMMISSION DISPUTE.
| Area of Law: | Real Estate Law |
| Keywords: | Statute of frauds; Demurrer; Real estate commission dispute |
| Jurisdiction: | Federal |
| Cited Cases: | 191 Cal. App. 2d 760; 107 Cal. App. 3d 179; 12 Cal. Rptr. 852; 30 Cal. Rptr. 530; 381 P.2d 386; 47 Cal. 2d 62 |
| Cited Statutes: | None |
| Date: | 05/01/2001 |
The question of whether or not an alleged contract satisfies the statute of frauds may be posed by demurrer. See, e.g., Malerbi & Assocs. v. Seivert, 191 Cal. App. 2d 760, 763, 12 Cal. Rptr. 852 (3d Dist. 1961). As the Malerbi court explained,
“Whenever it appears on the face of a complaint that the contract sued on is within the operation of the statute of frauds, and that it does not meet the requirements of the statute, advantage of the invalidity of the contract may appropriately be taken by demurring generally or specially.”
Id., 191 Cal. App. 2d at 763 (quoting 23 Cal. Jur. 2d Frauds, Statute of § 150, at 440; citing 2 Corbin on Contracts § 318, at 143).
The statute of frauds issue has arisen in other real-estate-commission disputes. In Franklin v. Hansen, 59 Cal. 2d 570, 381 P.2d 386, 30 Cal. Rptr. 530 (1963), for instance, the plaintiff broker sued for commissions allegedly owed to him by the defendant seller pursuant to an oral agreement. Id., 59 Cal. 2d at 571. The defendant demurred to the complaint for commissions, but the trial court overruled the demurrer. Id. at 572. The defendant seller appealed, and the appellate court reversed.
The court explained that although the absence of a written record regarding compensation does not necessarily defeat a claim for commission […]