Ark. Code Ann. § 4-59-101 (2026)

Research References

ALR.

Action for Fraud or Deceit Predicated upon Oral Contract Within Statute of Frauds or Transaction of Which Oral Contract Was a Part, 30 A.L.R.7th Art. 4 (2018).

Ark. L. Notes.

Copeland, A Statutory Primer: Article 2 of the U.C.C., — When Do Its Rules Apply?, 1990 Ark. L. Notes 39.

Brill, Specific Performance in Arkansas, 1995 Ark. L. Notes 17.

Circo, Why is This Boilerplate in My Real Estate Contract?, 2005 Arkansas L. Notes 1.

Ark. L. Rev.

You've Got Mail … But Do You Have a Contract?: Does an E-Mail Satisfy the Arkansas Statute of Frauds?, 60 Ark. L. Rev. 707.

U. Ark. Little Rock L.J.

Survey, Contracts, 12 U. Ark. Little Rock L.J. 611.

Case Notes

In General.

This section will not be allowed to operate as an instrument of fraud either in permitting one guilty of fraud to shelter himself behind it or in allowing its use as a means of perpetrating a fraud. Neil v. Neil, 172 Ark. 381, 288 S.W. 890 (1926); Bolin v. Drainage Dist. No. 17, 206 Ark. 459, 176 S.W.2d 143 (1943).

Where business owners acknowledged in their depositions that the bank held a lien on the business inventory and assets, the $20,000 insurance proceeds were from coverage of the business's inventory that was destroyed by fire, and that the promissory note for the money that was borrowed from the bank was also individually guaranteed by the owners, the owners were obligated on the loan pursuant to either the promissory note or the guaranty agreement, and their payment of the insurance proceeds to the bank was not solely referable to the alleged oral contract and did not constitute partial performance to take the alleged oral agreement out of the statute of frauds. Moore v. Wallace, 90 Ark. App. 298, 205 S.W.3d 824 (2005).

Applicability.

This section does not apply to contracts which may be completely performed on one side when nothing remains to be done during a period longer than one year, except for the payment of compensation. Johnson v. Harrywell, Inc., 47 Ark. App. 61, 885 S.W.2d 25 (1994).

Where a cashier's check was issued for the amount of the loan from the lender to the borrower, and the borrower made partial payments on the loan through direct deposits to the lender's account, the appellate court held that the statute of frauds did not apply. Cobb v. Leyendecker, 89 Ark. App. 167, 200 S.W.3d 924 (2005).

Husband's argument that the trial court had enforced an oral contract, contrary to subsection (d) of this section, was rejected where the trial court was clearly enforcing its order and the parties' written property settlement agreement when it found the husband in contempt. Peace v. Peace, 2016 Ark. App. 406, 500 S.W.3d 169 (2016).

Agreement in Consideration of Marriage.

A marriage contract must be reduced to writing and acknowledged. Galbreath, Stewart & Co. v. Cook, 30 Ark. 417 (1875).

An oral marriage settlement entered into before marriage being reduced to writing, signed and acknowledged after marriage, followed by substantial part performance, is valid and enforceable after the husband's death against his administrator. Sims v. Roberts, 188 Ark. 1030, 68 S.W.2d 1001 (1934).

Buildings.

Houses erected by a lumber company on leased land which, under written contract, were to remain the property of the company as trade fixtures, never became part of the realty but remained personal property and the only provision of the statute of frauds applicable thereto would be that which relates to the sale of chattels. Cameron v. Robbins, 141 Ark. 607, 218 S.W. 173 (1920).

Where the grantor of timber to a lumber company contracted in writing that houses erected on the grantor's land by the company should belong to the grantor at the end of the period allowed for removal of the timber, and a subsequent verbal contract that buildings erected by the company on lands of a third person should also belong to the grantor was entered into, the part of the contract not in writing was one not within the statute of frauds. Cameron v. Robbins, 141 Ark. 607, 218 S.W. 173 (1920).

Statute of frauds did not apply to building contract nor prevent the recovery of an additional sum on account of alteration in the plans. Petrie v. Spooner, 145 Ark. 138, 223 S.W. 383 (1920).

Contracts Concerning Land.

To take an oral contract out of the statute of frauds under subdivision (a)(5) of this section, the making of the oral contract and its performance had to be proven by clear and convincing evidence; the trial court was not clearly erroneous in finding that all of the terms of the lease claimed in this case had not been proven by clear and convincing evidence. Grisanti v. Zanone, 2009 Ark. App. 545, 336 S.W.3d 886 (2009).

When a party alleged the existence of a constructive trust, the trial court may admit parol evidence of an oral promise to determine if a constructive trust should be imposed by a court of equity, and the statute of frauds does not apply. Acuff v. Bumgarner, 2009 Ark. App. 854, 371 S.W.3d 709 (2009), review denied, Acuff v. Donald, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 186 (Apr. 1, 2010).

Real estate prong of this section, the Arkansas Statute of Frauds, did not bar enforcement of an estoppel certificate signed by a seller, who held a first mortgage, where the certificate obligated the second mortgage holder to pay off the first mortgage in the event of the debtor's default in the bridge loan from the second mortgage holder, because the certificate did not convey or create an estate in land. Shelton v. Kennedy Funding, Inc., 622 F.3d 943 (8th Cir. 2010).

While there was no written contract between the parties for the sale of land, there were other unresolved factual and legal issues as to whether an oral contract existed and if a partial payment was sufficient to take it out of the statute of frauds in subdivision (a)(4) of this section; therefore, summary judgment for the buyers was inappropriate. Vicentic v. Bishop, 2011 Ark. App. 149 (2011).

—In General.

A mere parol agreement by the purchaser of land at execution sale to reconvey the land to the execution defendants upon their reimbursing him for expenses incurred is void within the statute of frauds unless there is established an element of positive fraud whereby the title was wrongfully acquired. Eason v. Wheeler, 167 Ark. 320, 268 S.W. 29 (1925).

An oral agreement for the partition of lands including the right of one party to use a private road across another's land is not within the statute of frauds. Neil v. Neil, 172 Ark. 381, 288 S.W. 890 (1926).

Oral contract for sale of realty is barred by statute of frauds unless there is convincing evidence both in the making of the contract and the performance of the contract. Hudspeth v. Thomas, 214 Ark. 347, 216 S.W.2d 389 (1949); Pfeifer v. Raper, 253 Ark. 438, 486 S.W.2d 524 (1972).

Contracts in violation of subdivision (a)(4) are merely unenforceable, but not void. Betnar v. Rose, 259 Ark. 820, 536 S.W.2d 719 (1976).

Vendor's breach of contract action against purchasers of real estate properly dismissed where the purchasers did not sign a sales contract. Blackmon v. Berry, 57 Ark. App. 1, 939 S.W.2d 863 (1997).

—Adverse Possession.

A parol agreement to divest title acquired by adverse possession comes within the statute. Parham v. Dedman, 66 Ark. 26, 48 S.W. 673 (1898).

In a suit by the owner of land seeking specific performance of a verbal contract to sell the land, defended on the ground of adverse possession, the plaintiff could not use its oral and unenforceable agreement with the defendant to purchase the land as breaking the continuity of adverse possession by recognition of his title without being obliged to abide by such agreement if the defendant elected to purchase it. Chicago Mill & Lumber Co. v. Matthews, 163 Ark. 571, 260 S.W. 963 (1924).

—Agreements to Buy and Resell.

A verbal contract to divide the proceeds of the sale of land to be thereafter made is not within the statute of frauds. Sullivan v. Winters, 91 Ark. 149, 120 S.W. 843 (1909).

A verbal agreement between two persons whereby they agree to buy certain lands jointly and to divide the profits from a resale thereof is not within the statute of frauds. Beebe v. Olentine, 97 Ark. 390, 134 S.W. 936 (1911).

An oral partnership agreement for the purpose of buying and selling lands, leases and royalties for speculation, entered into before any property was purchased, was not within this statute. Russell v. Williams, 197 Ark. 1086, 126 S.W.2d 614 (1939).

The statute of frauds does not apply to an oral contract of partnership formed for the purpose of buying and selling land. Quinn v. Stuckey, 229 Ark. 956, 319 S.W.2d 839 (1959).

Trial court erred in concluding that the daughter was bound by the terms of the property sale agreement between two divorcing parties where the daughter was not a party to the original divorce action, she was not represented by counsel during the divorce proceedings before the trial court, and she was not asked by the court as part of the record of the divorce proceedings if she heard the agreement and agreed to its terms. Baker v. Daves, 83 Ark. App. 145, 119 S.W.3d 53 (2003).

—Delivery of Deed or Title.

The rule that the delivery of a deed in escrow takes the case out of the statute of frauds applies only in favor of the grantee therein. Barr v. Johnson, 102 Ark. 377, 144 S.W. 527 (1912).

A contract to purchase land is not within the statute of frauds where a check for the purchase money was given, an abstract title furnished and a deed executed and placed in escrow. Hollabaugh v. Taylor, 134 Ark. 415, 204 S.W. 628 (1918).

Where there was no delivery of a deed signed by the owner of the land to the alleged purchaser, the requirements of the statute of frauds were not performed and specific performance was denied. Wyatt v. Yingling, 213 Ark. 160, 210 S.W.2d 122 (1948).

Complaint for specific performance by vendor of a contract for sale of land was insufficient, though down payment made, and deed delivered by vendor in escrow with third party for delivery to vendee, as rule that delivery of deed takes case out of statute of frauds applies only in favor of the vendee. Faith v. Epperson, 213 Ark. 1002, 214 S.W.2d 223 (1948).

—Easements.

An easement is a liberty, privilege or advantage which one man may have in the lands of another without profit and must be held under a deed or other instrument in writing or by prescription. Wynn v. Garland, 19 Ark. 23 (1857).

The conveyance of an easement comes within the statute. Belser v. Moore, 73 Ark. 296, 84 S.W. 219 (1904).

Though a grant of an easement is embraced within the operation of the statute of frauds and must therefore be in writing, a parol grant, when executed as by building a wall, will be upheld and sustained under the same circumstances and on the same principle that a parol contract for the sale of land would be. Allison v. Schweitzer, 144 Ark. 123, 221 S.W. 454 (1920).

An individual asserting an easement by prescription has the burden of proof to show by a preponderance of the evidence that use of the roadway has been adverse to the owner and his predecessors in title under claim of right for the statutory period. Fields v. Ginger, 54 Ark. App. 216, 925 S.W.2d 794 (1996).

—Essential Terms.

Circuit court did not err in determining that the real estate contract satisfied the statute of frauds. The warranty deed that the parties executed on the same day as the real-estate contract named the Kiker trusts as grantors and provided a formal, legal description of the property. Also, the contract's designation of the premises by street address provided a sufficient key to the property's location to satisfy the statute of frauds. Sloop v. Kiker, 2016 Ark. App. 125, 484 S.W.3d 696 (2016).

Circuit court's order discussed and ruled on appellants' statute-of-frauds argument without deciding whether a $350,000 down payment constituted a penalty. Therefore, appellants' penalty argument was not reviewable by the appellate court. Sloop v. Kiker, 2016 Ark. App. 125, 484 S.W.3d 696 (2016).

Although the circuit court did not specifically rule on whether the contract satisfied the statute of frauds, the contract satisfied the statute of frauds and was enforceable by the seller where the written terms and conditions of the online auction were sufficient to put the LLC on notice as to how the auction would be conducted and the obligations imposed on it by placing a bid. Freeman Holdings of Ark., LLC v. FNBC Bancorp, Inc., 2019 Ark. App. 165, 574 S.W.3d 181 (2019).

—Estoppel.

Where wife joined in oral contract with her husband to sell homestead land and purchaser was immediately placed in possession, wife was held estopped to set up alleged invalidity of oral contract. Nicholas v. Ward, 205 Ark. 318, 168 S.W.2d 1095 (1943).

—Miscellaneous Contracts.

Parol contract to purchase an interest in rented land and entry thereunder was within the statute of frauds. Anthony v. Hunt, 31 Ark. 481 (1876).

A parol promise to reconvey land comes within the statute of frauds. Holt v. Moore, 37 Ark. 145 (1881); Patton v. Randolph, 197 Ark. 653, 124 S.W.2d 823 (1939).

An agreement to dig a well is not a contract for an interest in land. Plunkett v. Meredith, 72 Ark. 3, 77 S.W. 600 (1903).

A verbal contract conveying the right to redeem land sold for taxes is void. Henry v. Knod, 74 Ark. 390, 85 S.W. 1130 (1905).

An oral promise to renew a bond for title after cancellation of the original is void. King v. Crone, 114 Ark. 121, 169 S.W. 238 (1914).

Statute of frauds was not applicable to subscription agreement by which subscriber was to be deeded certain land. Byington v. Little Rock Chamber of Commerce, 132 Ark. 361, 201 S.W. 122 (1918).

An oral agreement to settle suit by alleged purchaser at tax sale for possession of property was not within this statute. Hastings v. Westfall, 194 Ark. 1139, 110 S.W.2d 513 (1937).

An oral family settlement in a dispute over land was held unenforceable as being within this statute. Eckles v. Whitehead, 196 Ark. 680, 119 S.W.2d 550 (1938).

Oral contracts to devise real property are invalid unless there is such part performance as will take the case out of the statute of frauds. Janes v. Rogers, 224 Ark. 116, 271 S.W.2d 930 (1954).

An oral contract to make an enforceable contract covering the sale of real estate and the sale of personalty was within the purview of the statute of frauds. Lee Wilson & Co. v. Springfield, 230 Ark. 257, 321 S.W.2d 775 (1959).

There was a binding contract where an agreement was made for the appellee to buy the appellant's share in a parcel of property, the appellee made all payments under this agreement, and the only reason a note and mortgage were not prepared was because the appellant asked the attorney who handled mutual affairs for the parties not to prepare the documents. Stewart v. Stewart, 72 Ark. App. 405, 37 S.W.3d 667 (2001).

Debtor/tenant had not provided evidence that the agreement between the debtor and the creditor for rental use of the property with an option to purchase was taken out of the purview of the Statute of Frauds because the debtor had not actually taken steps toward the purchase of the property. Lott v. Sponer Land, Ltd., — F. Supp. 2d —, 2007 U.S. Dist. LEXIS 7874 (W.D. Ark. Feb. 2, 2007).

Debtor had established that she had an equitable interest in the land where the debtor had a trailer parked because the debtor claimed she had an oral rent-to-own agreement with the property owner, the debtor had made payments to the owner for substantially all of the agreed-upon purchase price, the debtor had made improvements on the property. The debtor's actions took the oral agreement out of the purview of the Statute of Frauds, § 4-59-101. In re Paro, 362 B.R. 419 (Bankr. E.D. Ark. 2007).

—Mortgages.

When the debt secured by a mortgage has been paid, a contract that the mortgage shall thereafter serve as security for another debt must be in writing. Ross v. Hodges, 108 Ark. 270, 157 S.W. 391 (1913).

Where the mortgagor of land was in possession after foreclosure sale with the right to redeem, an oral agreement to extend the part of the redemption on specified terms, followed by acceptance of part of the redemption money pursuant to this agreement, is sufficient to take the transaction out of the operation of the statute of frauds. Coates v. Dortch, 145 Ark. 82, 224 S.W. 721 (1920).

An oral agreement to satisfy a mortgage does not fall within the statute of frauds. Riley v. Atherton, 185 Ark. 425, 47 S.W.2d 568 (1932).

A mortgagee's oral agreement to protect the homestead of the mortgagor's wife from foreclosure of the mortgage including it was held not within the statute of frauds. City Nat'l Bank v. Riggs, 188 Ark. 420, 66 S.W.2d 293 (1933).

As long as the right to defeat the purchase by the mortgagor by redemption exists, agreements with mortgagee to extend the time or modify the conditions for redemption are not within this statute. Williams v. Dumas, 197 Ark. 1011, 126 S.W.2d 934 (1939).

Although a parol agreement to satisfy a mortgage is not void by reason of this statute, the proof relating to the discharge or release thereof must be clear, satisfactory and convincing. Watts v. Martin, 202 Ark. 626, 151 S.W.2d 986 (1941).

—Part Performance.

The statute of frauds did not apply to an oral modification of a contract for the purchase of real property, which modification reduced the price of the property, since there was part performance of the contract where the defendant purchasers took possession of the home and tendered a check to the plaintiff sellers for $ 500. Johnston v. Curtis, 70 Ark. App. 195, 16 S.W.3d 283 (2000).

—Real Estate Agents.

A contract employing a real estate agent need not be in writing. Kempner v. Gans, 87 Ark. 221, 111 S.W. 1123 (1908), rehearing denied, 87 Ark. 221, 112 S.W. 1087 (1908); Forrester-Duncan Land Co. v. Evatt, 90 Ark. 301, 119 S.W. 282 (1909); Vaught v. Paddock, 98 Ark. 10, 135 S.W. 331 (1911); Blanton v. Jonesboro Bldg. & Loan Ass'n, 176 Ark. 315, 3 S.W.2d 964 (1928); Vanemburg v. Duffey, 177 Ark. 663, 7 S.W.2d 336 (1928).

Oral agreement between real estate broker and builder whereby builder was to pay broker commission for any building contracts which broker might obtain for builder was not a sale of interest in land so as to fall within the provisions of this section. Brown v. Lee, 242 Ark. 122, 412 S.W.2d 273 (1967).

—Recovery of Money or Property.

Where a party has paid money or delivered property on a parol contract for the purchase of land, which is void by the statute of frauds, he cannot maintain an action for the money or property so paid or delivered, so long as the other party is able and willing to perform the contract. Venable v. Brown, 31 Ark. 564 (1876).

Where a contract is unenforceable under the statute of frauds, a party who has paid anything of value to the other party who refuses to perform is entitled to recover amounts paid to the other in good faith. Gilton v. Chapman, 217 Ark. 390, 230 S.W.2d 37 (1950).

In view of fact that this section protects the rights of the vendor only, a vendee seeking to recover the purchase price or a portion thereof paid in consideration of an oral contract cannot set up the statute against a vendor who is ready and willing to perform. Betnar v. Rose, 259 Ark. 820, 536 S.W.2d 719 (1976).

Where homebuilder was willing and able to perform in connection with oral real estate sales agreement, purchaser could not maintain an action to recover money held in escrow as payment upon the purchase price. Betnar v. Rose, 259 Ark. 820, 536 S.W.2d 719 (1976).

—Rescission.

An agreement to rescind a written contract as to land is within the statute of frauds. Carter v. Munn, 55 Ark. 73, 17 S.W. 445 (1891); Friar v. Baldridge, 91 Ark. 133, 120 S.W. 989 (1909); Barrett v. Durbin, 106 Ark. 332, 153 S.W. 265 (1913).

A verbal rescission of an option contract to purchase land is available in equity to repel a claim upon that contract. Atkinson v. Thomas, 138 Ark. 47, 210 S.W. 779 (1919).

An oral agreement to rescind a contract, whereby an owner of land conveyed by deed the standing timber on the land together with a note for an additional sum in exchange for an automobile, was held not in contravention of the statute of frauds where the automobile was returned pursuant to the agreement to rescind and where the grantee had never taken possession of the timber. Robertson v. Lain, 168 Ark. 210, 269 S.W. 574 (1925).

—Specific Performance.

Specific performance was granted on oral contract for sale of land. Sebold v. Williamson, 203 Ark. 741, 158 S.W.2d 667 (1942); Marsh v. Marsh, 213 Ark. 366, 210 S.W.2d 811 (1948).

A purchaser of realty who holds a receipt for a down payment but who was never placed in possession, was not entitled to specific performance of the contract but was entitled to the return of his money plus interest; however, a purchaser of realty who was placed in possession of the realty mutually understood to be conveyed, and whose subsequent payments were accepted, was entitled to a reformation of a deed, and specific performance as it was taken out of the statute of frauds. Kromray v. Stobaugh, 212 Ark. 377, 206 S.W.2d 171 (1947).

A court of equity may grant specific performance of a parol contract to convey land, but only where the evidence of the agreement is clear, satisfactory and convincing of something to take it out of the statute of frauds. McNutt v. Carnes, 213 Ark. 346, 210 S.W.2d 290 (1948).

In order to remove an oral contract to convey land from the statute of frauds, improvements made pursuant to the alleged contract must have been so valuable and substantial in nature that refusal of specific performance would have been inequitable. Pfeifer v. Raper, 253 Ark. 438, 486 S.W.2d 524 (1972).

—Timber.

Delivery of timber sold and payment of the price thereof takes the contract out of the statute of frauds. Robinson v. Wynne, 97 Ark. 366, 134 S.W. 319 (1911).

Growing timber as real estate can be conveyed by deed only; any other mode of transfer would be within the statute of frauds and void. Griffith v. Ayer-Lord Tie Co., 109 Ark. 223, 159 S.W. 218 (1913); Carnahan v. Terrall Bros., 137 Ark. 407, 209 S.W. 64 (1919).

A contract to purchase timber land, plaintiff to take title, and defendant to advance the purchase price and take a mortgage as security, is not within the statute of frauds. Bonner v. Kimball-Lacy Lumber Co., 114 Ark. 42, 169 S.W. 242 (1914).

A sale of growing trees is within the statute of frauds. Broderick v. McRae Box Co., 138 Ark. 215, 210 S.W. 935 (1919).

An oral contract for the sale of timber was taken out of the statute of frauds where the seller furnished the buyer money with which to erect a mill and where the buyer entered the land and did erect the mill with the money. J.D. Kilgore Lumber Co. v. Halley, 140 Ark. 448, 215 S.W. 653 (1919).

Where the vendor of standing timber received payment and the purchaser entered into possession, this took the contract out of the statute of frauds, though it was oral. Beattie v. Smith, 146 Ark. 532, 226 S.W. 168 (1920).

A contract for the cutting and removal of timber which was signed by a lumber company and was delivered to the land owner, who did not sign it until an addenda was added fixing the starting time for the contract, the addenda being pasted to the original, was binding on the company and was not void under the provisions of the statute of frauds. Standridge v. Rice, 212 Ark. 703, 207 S.W.2d 598 (1948).

Oral contract to sell timber violated statute of frauds. Ozan Lumber Co. v. Price, 219 Ark. 709, 244 S.W.2d 486 (1951).

Specific performance of an oral contract to convey timber where the price agreed upon had been paid and accepted by the seller and the buyer had started cutting the timber, but the seller had not signed the deed to the timber. Poore v. Slaughter, 245 Ark. 203, 431 S.W.2d 837 (1968).

Standing timber is a part of the realty and sales of it constitute sales of an interest in the realty within the meaning of the statute of frauds. Sterling v. Landis, 9 Ark. App. 290, 658 S.W.2d 429 (1983).

Contract for Employment.

The fact that the commissions might be paid to employee for a period of time longer than one year did not bring the employment contract within the statute of frauds. Johnson v. Harrywell, Inc., 47 Ark. App. 61, 885 S.W.2d 25 (1994).

Contracts Not Performed Within Year.

A promise to pay a debt, without fixing a time therefor, is an immediate contract, and not within the statute. Lanagin v. Nowland, 44 Ark. 84 (1884); Arkansas M. Ry. v. Whitley, 54 Ark. 199, 15 S.W. 465 (1891); Sweet v. Desha Lumber & Planing Co., 56 Ark. 629, 20 S.W. 514 (1892).

Parol contracts for personal services for a longer period than one year are void; part performance does not take them without the statute, nor does a contingency that subjects them to a sooner termination. Meyer v. Roberts, 46 Ark. 80 (1885); Henry v. Wells, 48 Ark. 485, 3 S.W. 637 (1886); Oak Leaf Mill Co. v. Cooper, 103 Ark. 79, 146 S.W. 130 (1912); Izard v. Connecticut Fire Ins. Co., 128 Ark. 433, 194 S.W. 1032 (1917).

In order to bring a contract within the statute of frauds as one not to be performed within a year, it must be one that by its terms is not to be performed within a year. Sullivan v. Winters, 91 Ark. 149, 120 S.W. 843 (1909).

Contract held to be performable within one year. Valley Planting Co. v. Wise, 93 Ark. 1, 123 S.W. 768 (1909); Brickey v. Continental Gin Co., 113 Ark. 15, 166 S.W. 744 (1914).

Contract held to be performable within one year where events might terminate its operation within that period. Hampton v. Caldwell & Hall, 95 Ark. 387, 129 S.W. 816 (1910); Graham v. Jonesboro, L. C. & E. R. Co., 111 Ark. 598, 164 S.W. 729 (1914); Moon v. Gilliam, 187 Ark. 581, 61 S.W.2d 64 (1933).

A verbal contract entered into in one year for employment for the whole next year was within the statute of frauds and could not be taken outside the operation of the statute either by part performance or by an acknowledgment thereof by the defendant within the next year. Oak Leaf Mill Co. v. Cooper, 103 Ark. 79, 146 S.W. 130 (1912).

An oral contract for the erection of a building which may be performed within a year is not prohibited by the statute of frauds. Friedman v. Schleuter, 105 Ark. 580, 151 S.W. 696 (1912).

Where the consideration of buyer's signing certain notes due more than one year after their making was that the seller would turn over to him certain insurance business which the seller failed to do, it was held that although this agreement was still within the statute of frauds in a suit on the notes, it could not be availed of as a defense to the notes, being a partial failure of the consideration thereof. Hamburg Bank v. Ahrens, 118 Ark. 548, 177 S.W. 14 (1915).

Contracts held not to be performable within one year. Harrower v. Insurance Co. of N. Am., 144 Ark. 279, 222 S.W. 39 (1920); McPhail v. Laughrun, 214 Ark. 476, 217 S.W.2d 244 (1949); Peters v. Hubbard, 242 Ark. 839, 416 S.W.2d 300 (1967).

A contract that may be performed within a year from the making thereof is not within the statute, though the fruition of such a contract does not accrue until after the expiration of that time. Reed Oil Co. v. Cain, 169 Ark. 309, 275 S.W. 333 (1925).

Where there was a conflict of testimony as to whether a contract of employment was to be performed within a year, the question was properly left to the jury. Blanton Co. v. Stewart, 182 Ark. 934, 33 S.W.2d 50 (1930).

An oral contract for one year's employment made retroactive is valid under the statute. Blanton Co. v. Burke, 183 Ark. 797, 38 S.W.2d 1086 (1931).

While an oral contract for personal services in excess of one year was void and part performance would not remove it from operation of statute of frauds, the employer was liable for whatever service was rendered. Swafford v. Sealtest Foods Div. of Nat'l Dairy Prods. Corp., 252 Ark. 1182, 483 S.W.2d 202 (1972).

Statute of frauds was not applicable to employment contract because it was for an indefinite duration and was terminable at the will of either party; hence, the possibility existed that the contract could be performed within one year of its inception. Country Corner Food & Drug, Inc. v. Reiss, 22 Ark. App. 222, 737 S.W.2d 672 (1987).

A contract does not come within the statute of frauds where the testimony shows it could be performed within a year, although there was a possibility or even a probability that it might require a longer time. Chadwell v. Pannell, 27 Ark. App. 59, 766 S.W.2d 38 (1989).

Verbal agreement between the parties was enforceable because Arkansas courts recognized lease agreements between a landlord and tenant that were not in writing, and a month-to-month lease was not subject to the one-year provision of the statute of frauds. Ferrell v. Ferrell (In re Ferrell), No. 1:12-CV-1018, 2012 U.S. Dist. LEXIS 154679 (W.D. Ark. Oct. 29, 2012).

Debts Contracted During Infancy.

Installment buyer of second-hand automobile is estopped from disaffirming contract on ground that he was a minor at time contract was signed, where he knew that it was necessary to be at or over age of majority at the time of the sale and where, inter alia, after reaching full age, he made a number of payments, drove the car 35,000 miles, and collected for claims on the automobile's collision coverage, since these acts show that he affirmed the contract after his majority had been reached. Haydon v. Hillhouse, 223 Ark. 957, 270 S.W.2d 910 (1954).

Debts Discharged in Bankruptcy.

A partial payment of debt discharged in bankruptcy is not sufficient evidence of a new promise to pay to revive the debt. Polk v. Stephens, 118 Ark. 438, 176 S.W. 689 (1915).

No particular form of words is necessary but the promise to pay a debt discharged in bankruptcy must be clear, distinct and unequivocal and there must be a clear and certain identification of the particular debt intended to be revived. Bank of Searcy v. Kroh, 195 Ark. 785, 114 S.W.2d 26 (1938).

Lease for Longer Than a Year.

An oral agreement altering a written lease for a term of years, though unenforceable as a contract under the statute of frauds, will operate as an estoppel as against the lessor and his grantee, where the lessor by his conduct led the lessee to act upon such oral agreement and the grantee took with notice thereof. Conley v. Johnson, 69 Ark. 513, 64 S.W. 277 (1901).

An agreement for a lease of land for a year to begin at a future date whose consideration was an agreement of the lessees to make certain improvement and do certain work upon the land during the lease, though not in writing, does not fall within the statute of frauds. Thomas v. Croom, 102 Ark. 108, 143 S.W. 88 (1912).

An oral contract to lease land for one year to commence at a date subsequent to the contract is not within the statute. Alexander-Amberg & Co. v. Hollis, 115 Ark. 589, 171 S.W. 915 (1914); Boddy v. Thompson, 179 Ark. 71, 14 S.W.2d 240 (1929).

If the provision for renewal of a lease contains no requirement that the option be exercised in writing, notice may be given orally. Neal v. Harris, 140 Ark. 619, 216 S.W. 6 (1919).

A parol agreement by a landlord to reduce the rent of his tenant from date if the tenant will agree to renew her lease for another year which period is to begin at a time which is more than a year away is valid under the statute. Cook v. Cave, 163 Ark. 407, 260 S.W. 49 (1924).

A contract by which the plaintiff was to obtain a lease for a period of less than a year with an option to renew for a period of more than a year, in consideration of cash payment and of further payments during the period of the lease and renewal, was held not within the statute of frauds where the contract was completely executed on the plaintiff's side within a year and nothing remained on the other side but the payment of compensation during a period of more than a year. Manufacturers' Furn. Co. v. Cantrell, 172 Ark. 642, 290 S.W. 353 (1927).

Subdivision (a)(5) had no application to unlawful detainer action against tenant who had been in possession under oral contract providing for free rental for the first three years. Bolin v. Drainage Dist. No. 17, 206 Ark. 459, 176 S.W.2d 143 (1943).

This statute will not be allowed to so operate as to permit one to enter upon the lands of another, as a tenant, and after so occupying for more than a year, say that he may neither be dispossessed, nor required to pay rent because of the statute. Bolin v. Drainage Dist. No. 17, 206 Ark. 459, 176 S.W.2d 143 (1943).

A stipulation in a lease for renewal was in effect a provision for mutual extension of the term, and oral testimony was proper to show that the provision had been invoked. Beasley v. Boren, 210 Ark. 608, 197 S.W.2d 287 (1946).

An oral lease of land for one year evidenced by a receipt for one year's rent, and a similar receipt for the next year did not violate this section. Scott v. Altom, 240 Ark. 710, 401 S.W.2d 734 (1966).

A year-to-year periodic tenancy does not violate subsection (a)(5). Smith v. Campbell, 71 Ark. App. 23, 26 S.W.3d 139 (2000).

Modification of Contracts.

A contract required to be in writing cannot be changed, modified or contradicted by a subsequent parol contract. Arkmo Lumber Co. v. Cantrell, 159 Ark. 445, 252 S.W. 901 (1923).

The general rule that a material modification of a contract within the statute of frauds must be in writing to be valid has no application where the charge does not affect an essential part of the contract but merely substitutes a mode of performance thereof not within the statute. Valley Planing Mill Co. v. Lena Lumber Co., 168 Ark. 1133, 272 S.W. 860 (1925).

Parol evidence is competent to establish an oral modification of agreements contained in an instrument required to be in writing by the statute of frauds when offered by a stranger to the written instrument. Sterling v. Landis, 9 Ark. App. 290, 658 S.W.2d 429 (1983).

A contract for the transfer of an interest in real estate is required to be in writing under the statute of frauds and cannot be modified in essential parts by parol agreement and be held valid against a plea that it is invalid under that statute; thus oral modifications to contract for transfer of interest in real estate are changes to the essential elements of the agreement which if not evidenced by the required memorandum, could not be held valid against a plea of invalidity under the statute of frauds. Davis v. Patel, 32 Ark. App. 1, 794 S.W.2d 158 (1990).

Finding against the relatives in an action stemming from the relatives' default on a promissory note and security agreement previously executed was proper pursuant to subdivision (a)(6) of this section because any agreement such as alleged by the relatives to substitute services for money owed was a material modification and, in order to be effective, the modification would have to have been in writing, which the relatives failed to produce. Housley v. Hensley, 100 Ark. App. 118, 265 S.W.3d 136 (2007).

Partial or Full Performance.

Payment of purchase price alone is not part performance sufficient to take oral contract for sale of land out of the statute of frauds. Underhill v. Allen, 18 Ark. 466 (1857); Bromley v. Aday, 70 Ark. 351, 68 S.W. 32 (1902); Fryer v. Mabin, 158 Ark. 579, 250 S.W. 877 (1923); French v. Castleberry, 238 Ark. 1038, 386 S.W.2d 482 (1965). But see Ferguson v. C. H. Triplett Co., 199 Ark. 546, 134 S.W.2d 538 (1939).

Part performance of a parol contract for a life tenancy takes it out of the statute. Saint Louis, A. & T. Ry. v. Graham, 55 Ark. 294, 18 S.W. 56 (1892).

Payment of the purchase price in full and making of valuable improvements on the land bought takes a verbal sale out of the statute of frauds. Pembroke v. Logan, 71 Ark. 364, 74 S.W. 297 (1903).

Performance held sufficient to take oral contract for conveyance of land or interest in land out of statute of frauds. Ellis v. Campbell, 84 Ark. 584, 106 S.W. 939 (1907); Dyer v. Dyer, 116 Ark. 487, 173 S.W. 394 (1915); Swift v. Swift, 121 Ark. 197, 180 S.W. 742 (1915); Bostleman v. Henkle, 152 Ark. 628, 239 S.W. 30 (1922); Hollowoa v. Buck, 174 Ark. 497, 296 S.W. 74 (1927); Southwestern Veneer Co. v. Dennison, 174 Ark. 560, 298 S.W. 30 (1927); Minich v. Bass, 183 Ark. 350, 36 S.W.2d 66 (1931); Person v. Miller Levee Dist., 202 Ark. 876, 154 S.W.2d 15 (1941); Henneberger v. Duncan, 204 Ark. 4, 161 S.W.2d 380 (1942); Baker v. Taylor & Co., 218 Ark. 538, 237 S.W.2d 471 (1951); Kinney v. Patterson, 225 Ark. 393, 282 S.W.2d 809 (1955); Carpenter v. Franklin, 228 Ark. 512, 308 S.W.2d 829 (1958); Harper v. Albright, 228 Ark. 760, 310 S.W.2d 475 (1958); Harrison v. Oates, 234 Ark. 259, 351 S.W.2d 431 (1961); Marshall v. McCray, 241 Ark. 184, 406 S.W.2d 863 (1966); Pfeifer v. Raper, 253 Ark. 438, 486 S.W.2d 524 (1972); White v. White, 254 Ark. 257, 493 S.W.2d 133 (1973); Bramlett v. Selman, 268 Ark. 457, 597 S.W.2d 80 (1980).

A parol sale of land is taken without the statute of frauds where the vendee pays the purchase money, takes possession under his contract of purchase and makes valuable and permanent improvements. Lee v. Foushee, 91 Ark. 468, 120 S.W. 160 (1909); Carpenter v. Franklin, 228 Ark. 512, 308 S.W.2d 829 (1958).

A verbal lease of land for a term of years is taken outside the statute of frauds where the lessee is in possession, pays the rent and valuable improvements at his own expense. Reichardt v. Howe, 91 Ark. 280, 121 S.W. 347 (1909); Phillips v. Grubbs, 112 Ark. 562, 167 S.W. 101 (1914); Garner v. Starling, 137 Ark. 464, 208 S.W. 593 (1919); City Nat'l Bank v. Fite, 186 Ark. 266, 53 S.W.2d 440 (1932).

Lease for more than one year held to be removed from statute of frauds by part or full performance. Reichardt v. Howe, 91 Ark. 280, 121 S.W. 347 (1909); Phillips v. Grubbs, 112 Ark. 562, 167 S.W. 101 (1914); Grant v. Burrows, 139 Ark. 16, 212 S.W. 95 (1919); Newton v. Mathis, 140 Ark. 252, 215 S.W. 615 (1919); City Nat'l Bank v. Fite, 186 Ark. 266, 53 S.W.2d 440 (1932).

Where a defendant joined the wall of his building to the wall of the plaintiff's building under an oral agreement to pay part of the cost of plaintiff's wall, he could not defend an action for part of the cost of the wall upon the ground that the contract was within the statute of frauds; performance of the contract having taken it without the statute. Salyers v. Legate, 93 Ark. 606, 125 S.W. 1010 (1910).

Part performance of agreement to provide services in exchange for devise of real property held sufficient to take agreement out of the statute of frauds. Fred v. Asbury, 105 Ark. 494, 152 S.W. 155 (1912); Janes v. Rogers, 224 Ark. 116, 271 S.W.2d 930 (1954).

The taking possession of land in pursuance of a contract of sale, together with payment in full or in part of the purchase price, is a sufficient part performance to take the contract out of the statute of frauds. State Bank v. Sanders, 114 Ark. 440, 170 S.W. 86 (1914); Branstetter v. Branstetter, 115 Ark. 154, 170 S.W. 989 (1914); Ferguson v. C. H. Triplett Co., 199 Ark. 546, 134 S.W.2d 538 (1939); Harper v. Albright, 228 Ark. 760, 310 S.W.2d 475 (1958).

Performance held to be insufficient to take oral contract for conveyance of land or interest in land out of statute of frauds. Dyer v. Dyer, 116 Ark. 487, 173 S.W. 394 (1915); Starrett v. Dickson, 136 Ark. 326, 206 S.W. 441 (1918); Purvis v. Erwin, 167 Ark. 345, 268 S.W. 355 (1925); Hudspeth v. Thomas, 214 Ark. 347, 216 S.W.2d 389 (1949); Ozan Lumber Co. v. Price, 219 Ark. 709, 244 S.W.2d 486 (1951); Hyder v. Newcomb, 236 Ark. 231, 365 S.W.2d 271 (1963); French v. Castleberry, 238 Ark. 1038, 386 S.W.2d 482 (1965).

Part performance of agreement to answer for the debts of another held sufficient to take the agreement out of the statute of frauds. Martin v. State ex rel. Saline County, 171 Ark. 576, 286 S.W. 873 (1926).

Proof of payments made under oral contract for the sale of land held a part performance of the contract sufficient to take contract out of the statute of frauds. Ferguson v. C. H. Triplett Co., 199 Ark. 546, 134 S.W.2d 538 (1939). But see Underhill v. Allen, 18 Ark. 466 (1857) and following cases.

Part performance is a question of proof under the statute of frauds. Amisano v. Shaw, 214 Ark. 874, 218 S.W.2d 707 (1949).

The argument of the plaintiff that part performance of the contract, even if the statute of frauds is otherwise applicable, would satisfy the statute and render it inapplicable to this case could not be maintained in as much as the contract was not to be performed within one year. Cobb v. Southern Plaswood Corp., 171 F. Supp. 691 (W.D. Ark. 1959). But see Young v. Young, 238 Ark. 795, 929, 384 S.W.2d 469 (1964); Talley v. Blackmon, 271 Ark. 494, 609 S.W.2d 113 (Ct. App. 1980).

Part or full performance of contract not to be performed within a year held sufficient to take agreement out of statute of frauds. Young v. Young, 238 Ark. 795, 929, 384 S.W.2d 469 (1964); Talley v. Blackmon, 271 Ark. 494, 609 S.W.2d 113 (Ct. App. 1980). But see Cobb v. Southern Plaswood Corp., 171 F. Supp. 691 (W.D. Ark. 1959).

Part performance takes an oral contract for the sale of land out of the statute of frauds. Marshall v. McCray, 241 Ark. 184, 406 S.W.2d 863 (1966).

Part payment of the purchase price and delivery of the merchandise is usually sufficient to take an otherwise valid contract out of the statute of frauds. Lake Village Implement Co. v. Cox, 249 Ark. 733, 461 S.W.2d 108 (1970).

Partial performance of a contract for personal services does not take a verbal contract out of the operation of the statute of frauds, except for that part which was performed. Country Corner Food & Drug, Inc. v. Reiss, 22 Ark. App. 222, 737 S.W.2d 672 (1987).

Evidence sufficient to find sufficient detrimental reliance on the part of plaintiff to take the contract out of the operation of the statute of frauds. Country Corner Food & Drug, Inc. v. Reiss, 22 Ark. App. 222, 737 S.W.2d 672 (1987).

Partial or full payment of consideration together with taking of possession by the purchaser is sufficient to remove an oral contract from the statute of frauds. Chadwell v. Pannell, 27 Ark. App. 59, 766 S.W.2d 38 (1989).

—Actions.

The evidence was sufficient to support a jury finding of an oral contract and sufficient performance to take it out of the statute of frauds where (1) the former manager for the defendant testified that it was common in his industry for business to be done with a hand shake and no written contract and that he honored his agreement and intended a long term agreement with the plaintiff, and (2) the plaintiff also intended a long term agreement and purchased equipment based on representations made by the former manager. Mann Bros. Logging, Inc. v. Potlatch Corp., 149 F.3d 790 (8th Cir. 1998).

—Possession.

The delivery of possession under a verbal contract for the sale of real estate will take the case out of the statute of frauds. Pindall v. Trevor & Colgate, 30 Ark. 249 (1875); Pledger v. Garrison, 42 Ark. 246 (1883).

Between tenants in common the rule of delivery of possession taking the contract out of the statute is inapplicable. Haines v. McGlone, 44 Ark. 79 (1884).

Where possession is relied upon as part performance to take a verbal sale out of the statute of frauds, it must be clearly shown that such possession was taken under the contract of purchase. Lay v. Lay, 75 Ark. 526, 87 S.W. 1026 (1905).

Delivery of possession of land before an offer had been accepted by the owners and acts merely preparatory or ancillary to the agreement did not constitute part performance. Stanford v. Sager, 141 Ark. 458, 217 S.W. 458 (1920).

Continuance in possession of land by a lessee after an oral purchase is insufficient to take the contract out of the statute of frauds. Rugen v. Vaughan, 142 Ark. 176, 218 S.W. 205 (1920).

Where a purchaser of a farm, who finding that he could not pay for it, surrendered its possession to his vendor by directing his son-in-law in possession to attorn to the vendor, which the son-in-law did, and died without executing a reconveyance, the surrender was effective. Freer v. Less, 159 Ark. 509, 252 S.W. 354 (1923).

It is sufficient part performance to take an oral exchange of land out of the statute where one party went into possession and caused the land given in exchange to be conveyed to the other party and it is immaterial that the party going into possession did not retain actual, continuous or adverse possession. Hays v. Goodwin, 167 Ark. 131, 266 S.W. 933 (1924).

A parol agreement to convey land is valid against the statute of frauds where the grantor surrendered possession but died before making a deed. McKenzie v. Rumph, 171 Ark. 791, 286 S.W. 1022 (1926).

Where the plaintiff is in possession and sues for breach of contract to convey the land and the defendant denies the making of such an agreement, and no part of the purchase price has been paid, the defense of the statute of frauds is available. Stooksberry v. Pigg, 172 Ark. 763, 290 S.W. 355 (1927).

Under an oral contract to convey land, this statute is met by surrendering possession to the purchaser. Nicholas v. Ward, 205 Ark. 318, 168 S.W.2d 1095 (1943).

Delivery of possession under an oral contract for the sale of real estate will take the case out of the statute of frauds. Harrison v. Oates, 234 Ark. 259, 351 S.W.2d 431 (1961).

Although two writings entered into for the construction of a house were not valid contracts, once the house was built and the debtors moved in, that took the contract out of subdivision (a)(4) of this section, the statute of frauds, and based on the debtors' testimony regarding the parties' oral agreement with respect to the price to be paid, which the court found credible, the creditors' proof of claim for an additional amount was disallowed. Although the debtors were the prevailing party, they were not entitled to attorneys fees under § 16-22-308, as both parties were responsible for an incoherent agreement with no agreed upon purchase price. In re Cameron, 452 B.R. 754 (Bankr. E.D. Ark. 2011).

Pleadings.

The defense of the statute of frauds is waived unless specifically pleaded. El Dorado Ice & Planing Mill Co. v. Kinard, 96 Ark. 184, 131 S.W. 460 (1910).

Where the defense of the statute of frauds was not pleaded in the lower court, it cannot be interjected into the case for the first time on appeal. Dierks Lumber & Coal Co. v. Coffman, 96 Ark. 505, 132 S.W. 654 (1910); Smith v. Milam, 195 Ark. 157, 110 S.W.2d 1062 (1937).

The statute of frauds cannot be availed unless pleaded. S.H. Kress Co. v. Moscowitz, 105 Ark. 638, 152 S.W. 298 (1912).

An oral contract for the conveyance of land raises a moral obligation and the vendor need not plead the statute of frauds in an action for specific performance. Skinner v. Fisher, 120 Ark. 91, 178 S.W. 922 (1915).

Where the personal representative of a decedent cannot plead the statute of frauds, a judgment creditor cannot do so. Arkansas Valley Trust Co. v. Young, 128 Ark. 42, 195 S.W. 36 (1917).

In an action to charge the defendant on his oral promise to answer for another's debt, an allegation of the complaint that the plaintiff would not have made the loan except for the defendant's personal guaranty did not prevent the statute of frauds from applying. Elm Springs State Bank v. Bradley, 179 Ark. 437, 16 S.W.2d 585 (1929).

Complaint for specific performance of a contract for sale of land was insufficient to take case out of statute of frauds, where the complaint failed to allege any writing signed by the vendee, or that vendee had taken possession of land. Faith v. Epperson, 213 Ark. 1002, 214 S.W.2d 223 (1948).

Contention of plaintiff that oral cancellation of sale of property was insufficient because within statute of frauds was unavailing where neither party pleaded the statute of frauds. Rogers v. Moss, 216 Ark. 838, 227 S.W.2d 630 (1950).

General denial to complaint to recover damages on oral contract to sell timber raised defense of statute of frauds though not affirmatively pleaded, since answer denied existence of a valid contract. Ozan Lumber Co. v. Price, 219 Ark. 709, 244 S.W.2d 486 (1951).

Promises to Answer for Debts of Another.

Surety prong of this section, the Arkansas Statute of Frauds, did not bar enforcement of an estoppel certificate signed by a first mortgage holder because the second mortgage holder received new consideration for its promises contained in the certificate in the form of assurances from the first mortgage holder, including a concession that the value of the first mortgage did not exceed a stated amount, and waiver of the first mortgage's non-prepayment clause. Shelton v. Kennedy Funding, Inc., 622 F.3d 943 (8th Cir. 2010).

Contractor filed a counterclaim against a supplier for breach of a cost-overrun provision of the parties' oral agreement. As the evidence established that the cost-overrun provision was part of the original agreement, and not for the primary benefit of a subcontractor, the court did not abuse its discretion in finding there was insufficient evidence to support the supplier's request for a jury instruction on the statute of frauds. Forever Green Ath. Fields, Inc. v. Lasiter Constr., Inc., 2011 Ark. App. 347, 384 S.W.3d 540 (2011).

—Collateral or Original Obligations.

Agreements held to be original, not collateral, undertakings and not subject to statute of frauds. Cauthron Lumber Co. v. Hall, 76 Ark. 1, 88 S.W. 594 (1905); Burgie v. Bailey, 91 Ark. 383, 121 S.W. 266 (1909); Brinkley Car Works & Mfg. Co. v. Cook, 110 Ark. 325, 161 S.W. 1065 (1913); Smith v. J.M. Taylor & Co., 144 Ark. 569, 222 S.W. 1062 (1920); Layton v. Central States Lead & Zinc Co., 147 Ark. 355, 227 S.W. 415 (1921); Cleveland v. Maddox, 152 Ark. 538, 239 S.W. 370 (1922); Guild v. Whitlow, 162 Ark. 108, 257 S.W. 383 (1924); Moraz v. Melton, 167 Ark. 629, 268 S.W. 41 (1925); Powell v. Jones & Son, 170 Ark. 809, 281 S.W. 366 (1926); Nakdimen v. First Nat'l Bank, 177 Ark. 303, 6 S.W.2d 505 (1928), cert. denied, 278 U.S. 635, 49 S. Ct. 32 (1928); United States Fid. & Guar. Co. v. Wilson, 41 F.2d 319 (8th Cir. 1930); Foster-Grayson Lumber Co. v. Talley, 190 Ark. 37, 76 S.W.2d 950 (1934); Vincent v. Wesson, 204 Ark. 1108, 166 S.W.2d 1023 (1942); Barnett v. Hughey Auto Parts, Inc., 5 Ark. App. 1, 631 S.W.2d 623 (1982); Jones v. Innkeepers, Inc., 12 Ark. App. 364, 676 S.W.2d 761 (1984).

Where an oral promise is made to pay the debt of another out of property placed in the hands of the promisor for that purpose, it is an original promise and not governed by the statute of frauds. United Walnut Co. v. Courtney, 96 Ark. 46, 130 S.W. 566 (1910).

Agreements held to be collateral and subject to statute of frauds. Zimmerman v. Holt, 102 Ark. 407, 144 S.W. 222 (1912); Perry v. Jarman, 125 Ark. 240, 188 S.W. 544 (1916); Grady v. Dierks Lumber & Coal Co., 154 Ark. 255, 242 S.W. 548 (1922).

In determining whether an oral contract is original or collateral, the intention of the parties at the time it was made must be regarded and in determining such intention the words of the promise, the situation of the parties and all the circumstances attending the transaction should be taken into consideration. Millsaps, Hatchett & Co. v. Nixon, 102 Ark. 435, 144 S.W. 915 (1912); Barnett v. Hughey Auto Parts, Inc., 5 Ark. App. 1, 631 S.W.2d 623 (1982); Landmark Sav. Bank v. Weaver-Bailey Contractors, Inc., 22 Ark. App. 258, 739 S.W.2d 166 (1987).

Evidence held sufficient to make it a jury question whether promise was original or collateral and within the statute of frauds. Hinson v. Gillespie, 131 Ark. 240, 199 S.W. 97 (1917); Arkadelphia Milling Co. v. Green, 142 Ark. 565, 219 S.W. 319 (1920); Grady v. Dierks Lumber & Coal Co., 149 Ark. 306, 232 S.W. 23 (1921); Saul v. Bass, 152 Ark. 584, 239 S.W. 369 (1922).

Evidence sufficient to present an issue as to whether there was a new and original undertaking by the shopping center owner which would not come within the statute of frauds. Fausett Co. v. Rand, 2 Ark. App. 216, 619 S.W.2d 683 (1981).

Original undertakings are not within the statute of frauds and need not be in writing. Barnett v. Hughey Auto Parts, Inc., 5 Ark. App. 1, 631 S.W.2d 623 (1982).

Every collateral undertaking or promise to answer for the debt of another is within this statute and void if not in writing and signed by the person to be charged. Barnett v. Hughey Auto Parts, Inc., 5 Ark. App. 1, 631 S.W.2d 623 (1982); Rohrscheib v. Helena Hosp. Ass'n, 12 Ark. App. 6, 670 S.W.2d 812 (1984).

Original undertaking under which benefits are initially obtained, is enforceable and deemed to be outside this statute. Rohrscheib v. Helena Hosp. Ass'n, 12 Ark. App. 6, 670 S.W.2d 812 (1984).

All oral undertakings to answer for debt of another are not unenforceable under statute of frauds; promise by a third party to discharge a preexisting debt of another, without any new consideration or benefit passing to him, is a “collateral” understanding and unenforceable under the statute of frauds; however, notwithstanding the statute of frauds, such a contract is an “original” one and enforceable if founded on new consideration or benefit moving to the promisor. Landmark Sav. Bank v. Weaver-Bailey Contractors, Inc., 22 Ark. App. 258, 739 S.W.2d 166 (1987).

Finding that undertaking was an original one based on valid consideration was not clearly erroneous; therefore, notwithstanding statute of frauds, agreement was enforceable. Landmark Sav. Bank v. Weaver-Bailey Contractors, Inc., 22 Ark. App. 258, 739 S.W.2d 166 (1987).

—Corporations.

The parol promise of a corporation to pay debts contracted before its incorporation is within the statute. Little Rock & Fort Smith Ry. v. Perry, 37 Ark. 164 (1881).

A contract on behalf of a prospective corporation made for its benefit by promoters, though not in writing, is not within the statute of frauds as being a contract to answer for the debt, default or miscarriage of another since, on its adoption by the corporation, it became, in toto, an original undertaking of the corporation. Layton v. Central States Lead & Zinc Co., 147 Ark. 355, 227 S.W. 415 (1921).

In order for an officer of a corporation to bind such corporation by a guaranty of the debt of some other person or corporation it is necessary for him to sign some writing to that effect. Hutson v. T.M. Dover Mercantile Co., 170 Ark. 984, 282 S.W. 371 (1926).

—Debt of Another.

An agreement by a third party to accept for a creditor his debtor's draft stands upon the same footing as a promise to pay the debt. Chapline v. Atkinson & Co., 45 Ark. 67 (1885); Killough v. Payne, 52 Ark. 174, 12 S.W. 327 (1889); Neal v. Brandon, 70 Ark. 79, 66 S.W. 200 (1902).

Where person did not agree to pay the debt of another but did promise to pay his own, the promise was not within the statute of frauds and the oral agreement was enforceable. Faulkner v. Crawford, 119 Ark. 6, 177 S.W. 35 (1915).

The statute of frauds does not apply where plaintiffs are suing defendants for defendants' own debt, not for the debt of another. Park v. Burge, 5 Ark. App. 252, 635 S.W.2d 279 (1982).

—Estoppel.

Though one had made an oral promise to pay and failed to pay the debt of another, he is not estopped from pleading the statute where his failure to pay worked no fraud on the party to whom the promise was made. Goldsmith v. First Nat'l Bank, 169 Ark. 1162, 278 S.W. 22 (1925).

—Guaranty.

In an action to charge the defendant on his oral guaranty of another's note, the fact that the defendant's promise to pay the other's note, if renewed, was a mere renewal of his original oral promise of guaranty and was not made on any consideration to the defendant, so that such parol promise was as much within the statute of frauds as the original promise. Elm Springs State Bank v. Bradley, 179 Ark. 437, 16 S.W.2d 585 (1929).

A special oral indemnity agreement which agreed to hold the surety on a cost bond harmless was held a direct and not a collateral promise and not within the statute of frauds. United States Fid. & Guar. Co. v. Wilson, 41 F.2d 319 (8th Cir. 1930).

An oral guaranty is within the statute of frauds. Washum v. Lester, 183 Ark. 298, 36 S.W.2d 76 (1931).

—Medical Services.

Particular agreements for payment for medical services for third person held to be original undertaking not subject to the statute of frauds. Cleveland v. Maddox, 152 Ark. 538, 239 S.W. 370 (1922); Guild v. Whitlow, 162 Ark. 108, 257 S.W. 383 (1924); Vincent v. Wesson, 204 Ark. 1108, 166 S.W.2d 1023 (1942).

Particular agreement for payment of medical services for third person held to be subject to the statute of frauds. Yaffe v. Pickett, 196 Ark. 1139, 121 S.W.2d 93 (1938).

—Miscellaneous Agreements.

A verbal promise by the drawee of a check, after the check had been deposited in the bank by the payee, to pay if the bank failed was not binding. Burns v. Yocum, 81 Ark. 127, 98 S.W. 956 (1906).

Promise to pay prisoner's fine and costs was within the statute of frauds. Flenniken v. Harmon, 113 Ark. 542, 168 S.W. 1081 (1914).

In absence of a trust impressed on insurance proceeds from death of borrower, promise of wife of deceased borrower to pay debt after his death was no more than a moral obligation and clearly within the statute of frauds. Moore v. Lawrence, 252 Ark. 759, 480 S.W.2d 941 (1972).

—New Consideration.

An agreement on a new consideration is not within the statute. Conger v. Cotton, 37 Ark. 286 (1881); Jonesboro Hdwe. Co. v. Western Tie & Timber Co., 134 Ark. 543, 204 S.W. 418 (1918).

A promise to pay a debt of another antecedently contracted, where the primary debt still subsists, is original and not within the statute of frauds when it is founded on a new consideration moving to the promisor and beneficial to him and is such that the promisor thereby comes under an independent duty of payment irrespective of the ability of the principal debtor. Long v. McDaniel, 76 Ark. 292, 88 S.W. 964 (1905).

A parol promise to pay the debt of another is not within the statute of frauds when it arises from a new and original consideration of benefit or harm moving between the newly contracting parties. Hunt v. Taggett, 160 Ark. 617, 255 S.W. 8 (1923); Burkhart Mfg. Co. v. Berry, 162 Ark. 123, 257 S.W. 723 (1924).

Defendant's promise to pay the note of a purchaser of a car in consideration that the seller would not retake it was not within the statute of frauds, being supported by a new and independent consideration. Frame v. Whittam, 181 Ark. 768, 27 S.W.2d 990 (1930).

—Payment.

Payment for land and maintenance of the property were not sufficient to take an oral contract for the sale of land out of the operation of the statute of frauds. Dolphin v. Wilson, 328 Ark. 1, 942 S.W.2d 815 (1997).

—Preexisting Debts.

An agreement between promisor and debtor that the former will assume the indebtedness of the latter already incurred is an original undertaking and is not within the statute of frauds. Burgie v. Bailey, 91 Ark. 383, 121 S.W. 266 (1909).

Where the primary debt for services rendered to a person rests against him and a promise of a third person to pay it is made subsequent to the time it was incurred, such promise is not an original undertaking and is within the statute of frauds. Zimmerman v. Holt, 102 Ark. 407, 144 S.W. 222 (1912).

An oral agreement to stand as surety for an existing debt of another is void. Savage v. Craig, 105 Ark. 697, 150 S.W. 146 (1912).

Where the debt has already been incurred, a promise by a third party to discharge the preexisting debt of another without any new consideration or benefit passing to him, is a collateral promise and within the statute; however, even if the debt preexists, a subsequent promise of a third party to pay it is deemed original and enforceable if founded on a new consideration of benefit moving to the promisor. Barnett v. Hughey Auto Parts, Inc., 5 Ark. App. 1, 631 S.W.2d 623 (1982).

Where the original debt has already been incurred, an oral promise by a third party to discharge a preexisting debt without new consideration is a collateral promise and within this statute. Rohrscheib v. Helena Hosp. Ass'n, 12 Ark. App. 6, 670 S.W.2d 812 (1984).

A promise to discharge a preexisting debt which is founded on new consideration is enforceable and deemed to be outside this statute. Rohrscheib v. Helena Hosp. Ass'n, 12 Ark. App. 6, 670 S.W.2d 812 (1984).

—Promisor's Benefit.

An oral promise by a grantee of land to pay a debt of the grantor to a third person as part of the consideration for the conveyance is not within the statute of frauds. Scott v. Moore, 89 Ark. 321, 116 S.W. 660 (1909); Curlee v. Morris, 196 Ark. 779, 120 S.W.2d 10 (1938).

A verbal promise by a principal contractor that he would reimburse a certain bank for money advanced to a subcontractor upon time checks issued by the subcontractor in completing the contract work is not within the statute of frauds. S.R.H. Robinson & Son Contracting Co. v. Twin City Bank, 103 Ark. 219, 146 S.W. 523 (1912).

A finding that a promise by the vendor of an oil drilling rig to see that laborers employed in drilling an oil well were paid their wages was independent and not collateral is sustained by proof that the vendor was interested in having the well drilled in order that it might collect the price of the rig. Oil City Iron Works v. Bradley, 171 Ark. 45, 283 S.W. 362 (1926).

The statute forbidding the bringing of an action to charge any person upon an oral promise to answer for the debt, default or miscarriage of another does not apply to a promise to pay debts contracted by an agent at the instance of and for the promisor's benefit. Lesser-Goldman Cotton Co. v. Merchants & Planters Bank, 182 Ark. 150, 30 S.W.2d 215 (1930).

—Supplies Furnished to Another.

Agreements to pay for supplies furnished to another held to be an original undertaking and not statute of frauds. Cauthron Lumber Co. v. Hall, 76 Ark. 1, 88 S.W. 594 (1905); Smith v. J.M. Taylor & Co., 144 Ark. 569, 222 S.W. 1062 (1920); Barnett v. Hughey Auto Parts, Inc., 5 Ark. App. 1, 631 S.W.2d 623 (1982).

Agreement to furnish supplies held to be a collateral and not an original undertaking and within the statute of frauds. Perry v. Jarman, 125 Ark. 240, 188 S.W. 544 (1916).

Where a corporation promises to pay for supplies furnished to another as an original undertaking, the undertaking is not within the statute of frauds, but if the corporation is merely surety for the purchaser, the case is within the statute and must be evidenced by writing. Black Bros. Lumber Co. v. Varner, 164 Ark. 103, 261 S.W. 312 (1924).

The statute of frauds does not apply to a contract for the sale of material to one person, to be delivered to another. Colum v. Imboden, 185 Ark. 890, 50 S.W.2d 235 (1932).

Proof.

To remove an oral contract from the statute of frauds, it is necessary that the quantum of proof be clear and convincing both as to the making of the oral contract and its performance. Pfeifer v. Raper, 253 Ark. 438, 486 S.W.2d 524 (1972); Bramlett v. Selman, 268 Ark. 457, 597 S.W.2d 80 (1980).

Ratification of Agent's Act.

It is not essential that the ratification of an agent's act in accepting a contract within the statute of frauds should be in writing, though the acceptance must have been in writing to comply with the statute of frauds. Arkansas Light & Power Co. v. City of Paragould, 146 Ark. 1, 225 S.W. 435 (1920).

Unenforceable Agreements.

An oral agreement to reduce to writing a contract which is within the scope of the operation of the statute of frauds or to sign an agreement which the statute of frauds requires to be in writing is invalid and unenforceable. Lee Wilson & Co. v. Springfield, 230 Ark. 257, 321 S.W.2d 775 (1959).

Writing or Memorandum.

—In General.

Agreements to repair or build are not required to be in writing. Halbut v. Forrest City, 34 Ark. 246 (1879).

An agreement for the conveyance of an undivided interest in a partition fence which is an estate in the land must be in writing. Rudisill v. Cross, 54 Ark. 519, 16 S.W. 575 (1891).

Where a written contract for the sale of land is valid under the statute of frauds, its performance will not be defeated because there was another agreement not embraced in the writing. Davis v. Davis, 171 Ark. 168, 283 S.W. 360 (1926).

A suit by a purchaser for specific performance of a contract to convey real estate could not be based on a letter from a real estate agent to the vendors where, although the letter satisfied the statute of frauds, it was never delivered to the purchaser. Harris v. Dacus, 209 Ark. 1031, 193 S.W.2d 1006 (1946).

A contract in writing which leaves some essential term thereof to be shown by parol is only a parol contract, and not enforceable under the statute of frauds. Wyatt v. Yingling, 213 Ark. 160, 210 S.W.2d 122 (1948).

—Extrinsic or Parol Evidence.

Although designation of the premises in contract or memorandum by street number is ordinarily sufficient to satisfy the statute even though parol evidence must be used where the vendor owns two parcels of land the prospective purchaser could not by parol evidence show that vendor had agreed to also convey part of the other parcel in the transaction. Creighton v. Huggins, 227 Ark. 1096, 303 S.W.2d 893 (1957).

While extrinsic evidence may not be used to add to or change a deficient description, it may be used to decipher or make intelligible the terms of the contract to determine compliance with the statute of frauds. Boensch v. Cornett, 267 Ark. 671, 590 S.W.2d 55 (Ark. App. 1979).

Description sufficient to find that the writing was sufficient to satisfy the statute of frauds and allow extrinsic evidence to show facts rendering the description intelligible. Boensch v. Cornett, 267 Ark. 671, 590 S.W.2d 55 (Ark. App. 1979).

Where terms used in a deed to create an easement, specifically the word “across,” were definite and unambiguous, it was error for the chancellor to admit extrinsic evidence to contradict the terms used in the deed. Niemeyer v. Griffin, 309 Ark. 97, 826 S.W.2d 821 (1992).

—Incorporation of Instruments.

Different writings may be considered together to meet the requirements of the statute of frauds, where they on their face are connected together. Arkansas Light & Power Co. v. City of Paragould, 146 Ark. 1, 225 S.W. 435 (1920).

To permit consideration of two or more instruments together in a transaction for the sale of real estate to meet the requirements of the statute of frauds there must be some incorporation by one of the other or some reference to the other found in the instrument. Sorrells v. Bailey Cattle Co., 268 Ark. 800, 595 S.W.2d 950 (Ct. App. 1980).

Instruments could not be combined since one party to the alleged sale of land was not a party to the offer and acceptance and there was no provision in that instrument for any conveyance to her. Sorrells v. Bailey Cattle Co., 268 Ark. 800, 595 S.W.2d 950 (Ct. App. 1980).

—Sufficiency.

A writing which is dependent upon oral proof to disclose the terms of the contract is not sufficient to answer the requirements of the statute of frauds. Littell v. Jones, 56 Ark. 139, 19 S.W. 497 (1892).

Writing regarding promise to answer for the debt of another was sufficient to take case out of statute of frauds. Clinton v. Ross, 108 Ark. 442, 159 S.W. 1103 (1912); Scranton Mercantile Co. v. E. Schneider & Co., 163 Ark. 536, 260 S.W. 426 (1924); Jones v. Innkeepers, Inc., 12 Ark. App. 364, 676 S.W.2d 761 (1984).

It is sufficient if the memorandum is signed by the party sought to be charged. Jones v. School Dist., 137 Ark. 414, 208 S.W. 798 (1919).

Description of land to be sold held insufficient to take agreement out of the statute of frauds. Hotopp v. Adair, 144 Ark. 629, 223 S.W. 393 (1920); Kromray v. Stobaugh, 212 Ark. 377, 206 S.W.2d 171 (1947); Sorrells v. Bailey Cattle Co., 268 Ark. 800, 595 S.W.2d 950 (Ct. App. 1980).

Writing held sufficient to take contract concerning land out of the statute of frauds. Wilson v. Spry, 145 Ark. 21, 223 S.W. 564 (1920); Rawls v. Free, 184 Ark. 737, 43 S.W.2d 540 (1931); Coley v. Hall, 206 Ark. 419, 175 S.W.2d 979 (1943); Hale v. Hays, 251 Ark. 759, 475 S.W.2d 145 (1972).

Writing held insufficient to take contract concerning land out of statute of frauds. Briggs v. Frazer, 157 Ark. 518, 249 S.W. 9 (1923); Cobb v. Southern Plaswood Corp., 171 F. Supp. 691 (W.D. Ark. 1959); Dooley v. West, 210 F. Supp. 239 (W.D. Ark. 1962); Hyder v. Newcomb, 236 Ark. 231, 365 S.W.2d 271 (1963); Shipp v. Bell & Ross Enters., Inc., 256 Ark. 89, 505 S.W.2d 509 (1974).

Writing held sufficient to take contract not to be performed in one year out of statute of frauds. Central Clay Drainage Dist. v. Hunter, 174 Ark. 293, 295 S.W. 19 (1927).

To meet the essential and necessary requirements of a valid contract for the sale of real estate, within this statute, contract must embrace the terms and conditions of the sale and it must be a mutual contract. Tate v. Clark, 203 Ark. 231, 156 S.W.2d 218 (1941).

Receipt or memorandum not embracing the terms and conditions of alleged sale of land and the time and method of payment being not sufficient to satisfy the requirement of this section cannot be relied upon to enforce specific performance of alleged contract. Schuman v. Hughes, 203 Ark. 395, 156 S.W.2d 804 (1941).

A memorandum uncertain as to the time for and method and conditions of payment was insufficient. Perrin v. Price, 210 Ark. 535, 196 S.W.2d 766 (1946).

Writing regarding lease for more than a year insufficient to take the transaction out of the statute of frauds. Norton v. Hindsley, 245 Ark. 966, 435 S.W.2d 788 (1969).

A description of the land to be conveyed is an essential term of a contract for the sale of land; however, if the memorandum required by this section furnishes a means by which the realty to be conveyed can be identified, it need not describe the property with the particularity required for deeds. Boensch v. Cornett, 267 Ark. 671, 590 S.W.2d 55 (Ark. App. 1979).

Cited: Robinson v. Florence Sanitarium, 149 Ark. 355, 232 S.W. 590 (1921); Smith v. Westlake, 152 Ark. 384, 238 S.W. 34 (1922); Miles v. Scales, 174 Ark. 412, 295 S.W. 375 (1927); Thompson v. Phillips, 225 Ark. 736, 284 S.W.2d 842 (1955); Carroll v. Kessinger, 228 Ark. 450, 307 S.W.2d 880 (1957); Lee Wilson & Co. v. Springfield, 230 Ark. 257, 321 S.W.2d 775 (1959); Kelly v. Weir, 243 F. Supp. 588 (E.D. Ark. 1965); Benton v. Fultz, 241 Ark. 163, 406 S.W.2d 699 (1966); Farmers Coop. Ass'n v. Webb, 249 Ark. 277, 459 S.W.2d 815 (1970); Hyde Wholesale Dry Goods Co. v. Edwards, 255 Ark. 211, 500 S.W.2d 85 (1973); Robertson v. Ceola, 255 Ark. 703, 501 S.W.2d 764 (1973); Mikel v. Development Co., 269 Ark. 365, 602 S.W.2d 630 (1980); Gray v. Davis, 270 Ark. 917, 606 S.W.2d 607 (1980); Pierce-Odom, Inc. v. Evenson, 5 Ark. App. 67, 632 S.W.2d 247 (1982); Graves v. Graves, 7 Ark. App. 202, 646 S.W.2d 26 (1983); Township Bldrs., Inc. v. Kraus Constr. Co., 286 Ark. 487, 696 S.W.2d 308 (1985); McKay & Co. v. Garland, 17 Ark. App. 1, 701 S.W.2d 392 (1986); Western Auto Supply Co. v. Bank of Imboden, 17 Ark. App. 4, 701 S.W.2d 394 (1986); Hoffius v. Maestri, 31 Ark. App. 13, 786 S.W.2d 846 (1990); First Nat'l Bank v. Adair, 42 Ark. App. 84, 854 S.W.2d 358 (1993); Van Dyke v. Glover, 326 Ark. 736, 934 S.W.2d 204 (1996); Beavers v. Ark. State Bd. of Dental Exam'rs, 151 F.3d 838 (8th Cir. 1998); Powhatan Cemetery Ass'n v. Phillips, 90 Ark. App. 424, 206 S.W.3d 277 (2005).