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07/26/83 RUSSELL GILLESPIE AND VONDA GILLESPIE v.

July 26, 1983

RUSSELL GILLESPIE AND VONDA GILLESPIE, APPELLANTS,
v.
LOUISE PULSIFER, A/K/A LOUISE L. PULSIFER, A/K/A MRS. JAMES WILEY PULSIFER, RESPONDENT.



From the Circuit Court of Gentry County; Civil Appeal; Judge Montgomery L. Wilson.

Before Turnage, P.j., Somerville, C.j., Kennedy, J.

The opinion of the court was delivered by: Kennedy

The main question in the appeal before us is the sufficiency of certain signed writings to satisfy the statute of frauds requirement that a contract for the sale of real estate shall be "in writing and signed by the party to be charged therewith." § 432.010, RSMo 1978.

Upon evidence which we shall hereafter describe, the trial court granted a summary judgment in the defendant seller's favor upon the petition of the buyer for specific performance of the alleged contract.

We hold that the court ruled correctly and that as a matter of law the contract was unenforceable because not in writing as required by the statute of frauds.

The facts are as follows:

Defendant Louise Pulsifer and her husband owned a 196.5 acre farm in Gentry County, Missouri, as tenants by the entirety. Mr. Pulsifer died and Mrs. Pulsifer determined to sell the property. She advertised it in a local newspaper. The advertisement read as follows:

FARM FOR SALE

196 1/2 A located 5 mi. west of Albany or east from Carmack Junction on the south side of Highway 136. A good tile well and stocked pond, rest in cultivation.

Sealed bids will be accepted at The First State Bank of New Hampton until 2:00 p.m. on Monday, December 8. 20 % down and balance due at delivery of deed and abstract. I reserve the right to reject any or all bids.

MRS JAMES WILEY PULSIFER

816-726-5205 or 816-439-2125

Plaintiffs Russell Gillespie and Vonda Gillespie submitted a bid of $1,000 per acre, totaling $196,500. There is nothing in the evidence about the form of this bid. According to Mr. Gillespie's oral testimony, their bid was accepted and they paid a 20 % down payment by check for $39,300. The check was payable to defendant Mrs. Pulsifer, and in the lower left-hand corner of the check was the notation "20 % Down." The check was endorsed by Mrs. Pulsifer and collected by her.

The abstract of title, certified to December 8, 1980, was delivered to an attorney for the Gillespies for examination, who rendered an opinion upon the abstract ...


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