Brady v. Tucker

3 Ohio Law. Abs. 450, 1925 Ohio Misc. LEXIS 1171

• Court: Ohio Superior Court, Cincinnati
• Decided: May 29, 1925
• Docket: No. 59046
• Status: Published

Opinion

MARX, J.

Ben Brady, administrator of the estate of Jacob Brady, deceased, brought an action in the Cincinnati Superior Court against Lawrence Tucker. Brady claimed that Tucker verbally agreed to buy the holdings of his deceased son in the Brady Coal Co., to discharge the estate of decedent from any liability to said company, and to pay therefor $4237.59.

The verbal agreement was reduced to writing and entitled “Memorandum of Agreement”. This memorandum was then mailed to Tucker without being signed by either party and without comment. Shortly after its receipt, Tucker wrote a letter to Brady’s attorney refusing to sign the agreement. Brady claimed that this signed letter repudiating a previous oral agreement may be used as a memorandum in writing to satisfy the Statute of Frauds. The Court held:

1. Requirement of a “note or memorandum” is satisfied by a letter in which the writer after stating the bargain, repudiates it or refuses to enter into a written contract. But this is only true when written repudiation, acknowledges or admits existence and correctness of a previous oral agreement.

2. The acknowledgment of receipt of the communication embodying the terms of the agreement for the proposed purchase, sufficiently identifies the agreement referred to as the unsigned memorandum of agreement.

3. Nowhere does this letter contain acknowledgment that said memorandum correctly states terms of a completed contract. Use of words “proposed purchase” in Tucker’s letter indicate that no agreement had been reached.

4. There must be an admission of the making of the contract; and of the terms thereof, in the writing repudiating the contract before it can be held a sufficient memorandum.

Action of this court in directing a verdict in favor of Tucker is correct, and motion for a new trial is overruled.