statute of frauds defense in Colorado

1995Because I would not adopt this latter qualifier to the part performance doctrine, I believe that the grant of summary judgment regarding Nelson’s breach of contract claim was premature considering the parties’ disagreement over the factual questions of (1) whether Nelson’s alleged part performance was substantial enough to overcome a statute of frauds defense, see Adcock v. Lieber, 51 Colo. 373, 376 , 117 P. 993, 994 (1911) (alleged part performance is in part a question of fact); Boesiger v. Freer, 85 Idaho 551, 553 , 381 P.2d 802, 804 (1963) (“[wjhat constitutes part performance must depend

1995Because I would not adopt this latter qualifier to the part performance doctrine, I believe that the grant of summary judgment regarding Nelson’s breach of contract claim was premature considering the parties’ disagreement over the factual questions of (1) whether Nelson’s alleged part performance was substantial enough to overcome a statute of frauds defense, see Adcock v. Lieber, 51 Colo. 373, 376 , 117 P. 993, 994 (1911) (alleged part performance is in part a question of fact); Boesiger v. Freer, 85 Idaho 551, 553 , 381 P.2d 802, 804 (1963) (“[wjhat constitutes part performance must depend

2014Although in WRWC, LLC v. City of Arvada, 107 P.3d 1002, 1004 (Colo.App.2004), a division of this court stated that easements in gross create neither a dominant nor a servient estate, this is not quite accurate: easements in gross do create servient estates.

2005For example, in Klinke v. Famous Recipe Fried Chicken, Inc., [ 24 Wash.App. 202 ,] 600 P.2d 1034 (Wash.Ct.App.1979), after noting the general rule that “a verbal agreement to put in writing a contract which will require more than a year to be performed is within the statute of frauds and thus unenforceable,” 600 P.2d at 1037 , the court held that “the fact that either party has an option to put an end to the contract within a year does not take it out of the operation of the statute if, independent of the exercise of such power, the agreement cannot be performed within a year.” Id. at 1038.

2005For example, in Klinke v. Famous Recipe Fried Chicken, Inc., [ 24 Wash.App. 202 ,] 600 P.2d 1034 (Wash.Ct.App.1979), after noting the general rule that “a verbal agreement to put in writing a contract which will require more than a year to be performed is within the statute of frauds and thus unenforceable,” 600 P.2d at 1037 , the court held that “the fact that either party has an option to put an end to the contract within a year does not take it out of the operation of the statute if, independent of the exercise of such power, the agreement cannot be performed within a year.” Id. at 1038.

1995Because I would not adopt this latter qualifier to the part performance doctrine, I believe that the grant of summary judgment regarding Nelson’s breach of contract claim was premature considering the parties’ disagreement over the factual questions of (1) whether Nelson’s alleged part performance was substantial enough to overcome a statute of frauds defense, see Adcock v. Lieber, 51 Colo. 373, 376 , 117 P. 993, 994 (1911) (alleged part performance is in part a question of fact); Boesiger v. Freer, 85 Idaho 551, 553 , 381 P.2d 802, 804 (1963) (“[wjhat constitutes part performance must depend

1995Because I would not adopt this latter qualifier to the part performance doctrine, I believe that the grant of summary judgment regarding Nelson’s breach of contract claim was premature considering the parties’ disagreement over the factual questions of (1) whether Nelson’s alleged part performance was substantial enough to overcome a statute of frauds defense, see Adcock v. Lieber, 51 Colo. 373, 376 , 117 P. 993, 994 (1911) (alleged part performance is in part a question of fact); Boesiger v. Freer, 85 Idaho 551, 553 , 381 P.2d 802, 804 (1963) (“[wjhat constitutes part performance must depend

1995Because I would not adopt this latter qualifier to the part performance doctrine, I believe that the grant of summary judgment regarding Nelson’s breach of contract claim was premature considering the parties’ disagreement over the factual questions of (1) whether Nelson’s alleged part performance was substantial enough to overcome a statute of frauds defense, see Adcock v. Lieber, 51 Colo. 373, 376 , 117 P. 993, 994 (1911) (alleged part performance is in part a question of fact); Boesiger v. Freer, 85 Idaho 551, 553 , 381 P.2d 802, 804 (1963) (“[wjhat constitutes part performance must depend

1995Because I would not adopt this latter qualifier to the part performance doctrine, I believe that the grant of summary judgment regarding Nelson's breach of contract claim was premature considering the parties' disagreement over the factual questions of (1) whether Nelson's alleged part performance was substantial enough to overcome a statute of frauds defense, see Adcock v. Lieber, 51 Colo. 373, 376 , 117 P. 993, 994 (1911) (alleged part performance is in part a question of fact); Boesiger v. Freer, 85 Idaho 551, 553 , 381 P.2d 802, 804 (1963) ("[w]hat constitutes part performance must depend

1995Nelson’s part performance of the alleged oral service agreement may warrant an exception from the statute of frauds defense, depending upon the resolution of disputed issues of fact. 4 “[Pjart performance of a contract ... effectively removes it from the bar of the Statute of Frauds.” Ridgeway , 163 Colo, at 163, 430 P.2d at 78 ; accord Siler, 125 Colo, at 445, 244 P.2d at 881 ; Ralston Oil & Gas Co. v. July Corp., 719 P.2d 334, 339 (Colo.App.1985) (“An oral contract otherwise unenforceable under the statute of frauds may substitute for a writing if there is part performance of the oral contra

1995Nelson's part performance of the alleged oral service agreement may warrant an exception from the statute of frauds defense, depending upon the resolution of disputed issues of fact. [4] "[P]art performance of a *119 contract ... effectively removes it from the bar of the Statute of Frauds." Ridgeway, 163 Colo. at 163 , 430 P.2d at 78 ; accord Siler, 125 Colo. at 445 , 244 P.2d at 881 ; Ralston Oil & Gas Co. v. July Corp., 719 P.2d 334, 339 (Colo.App.1985) ("An oral contract otherwise unenforceable under the statute of frauds may substitute for a writing if there is part performance of the ora

1995See Burkhead v. Farlow, 266 N.C. 595 , 146 S.E.2d 802 (1966) (statute refers to party to be charged; thus, a written option agreement, signed by op-tioner, satisfies statute of frauds; however, optionee that verbally exercises that option may utilize a statute of frauds defense).

1995See Burkhead v. Farlow, 266 N.C. 595 , 146 S.E.2d 802 (1966) (statute refers to party to be charged; thus, a written option agreement, signed by op-tioner, satisfies statute of frauds; however, optionee that verbally exercises that option may utilize a statute of frauds defense).

1995Exceptions to the statute of frauds defense stem “from a desire to prevent the statute of frauds from being used as a shield which would otherwise allow a party to be unjustly enriched.” Ralston, 719 P.2d at 339 ; see also Bumford v. Biarming, 33 Colo.App. 444 , 448, 525 P.2d 494, 497 (Colo.App.1974), rev’d on other grounds, 189 Colo. 292 , 540 P.2d 337 (1975).

1995Exceptions to the statute of frauds defense stem "from a desire to prevent the statute of frauds from being used as a shield which would otherwise allow a party to be unjustly enriched." Ralston, 719 P.2d at 339 ; see also Burnford v. Blanning, 33 Colo.App. 444 , 448, 525 P.2d 494, 497 (Colo.App.1974), rev'd on other grounds, 189 Colo. 292 , 540 P.2d 337 (1975).

1995Nelson’s part performance of the alleged oral service agreement may warrant an exception from the statute of frauds defense, depending upon the resolution of disputed issues of fact. 4 “[Pjart performance of a contract ... effectively removes it from the bar of the Statute of Frauds.” Ridgeway , 163 Colo, at 163, 430 P.2d at 78 ; accord Siler, 125 Colo, at 445, 244 P.2d at 881 ; Ralston Oil & Gas Co. v. July Corp., 719 P.2d 334, 339 (Colo.App.1985) (“An oral contract otherwise unenforceable under the statute of frauds may substitute for a writing if there is part performance of the oral contra

1995Exceptions to the statute of frauds defense stem “from a desire to prevent the statute of frauds from being used as a shield which would otherwise allow a party to be unjustly enriched.” Ralston, 719 P.2d at 339 ; see also Bumford v. Biarming, 33 Colo.App. 444 , 448, 525 P.2d 494, 497 (Colo.App.1974), rev’d on other grounds, 189 Colo. 292 , 540 P.2d 337 (1975).

1995Section 4-1-103, C.R.S. (1992 Repl.Vol. 2); see Chidester v. Eastern Gas & Fuel Associates, 859 P.2d 222 (Colo.App.1992); cf. Karakehian v. Boyer, 900 P.2d 1273 (Colo.App.1994) (statute of frauds is not a defense to a promissory estop-pel claim).

1995Exceptions to the statute of frauds defense stem “from a desire to prevent the statute of frauds from being used as a shield which would otherwise allow a party to be unjustly enriched.” Ralston, 719 P.2d at 339 ; see also Bumford v. Biarming, 33 Colo.App. 444 , 448, 525 P.2d 494, 497 (Colo.App.1974), rev’d on other grounds, 189 Colo. 292 , 540 P.2d 337 (1975).

1995Exceptions to the statute of frauds defense stem “from a desire to prevent the statute of frauds from being used as a shield which would otherwise allow a party to be unjustly enriched.” Ralston, 719 P.2d at 339 ; see also Bumford v. Biarming, 33 Colo.App. 444 , 448, 525 P.2d 494, 497 (Colo.App.1974), rev’d on other grounds, 189 Colo. 292 , 540 P.2d 337 (1975).

1995Nelson’s part performance of the alleged oral service agreement may warrant an exception from the statute of frauds defense, depending upon the resolution of disputed issues of fact. 4 “[Pjart performance of a contract ... effectively removes it from the bar of the Statute of Frauds.” Ridgeway , 163 Colo, at 163, 430 P.2d at 78 ; accord Siler, 125 Colo, at 445, 244 P.2d at 881 ; Ralston Oil & Gas Co. v. July Corp., 719 P.2d 334, 339 (Colo.App.1985) (“An oral contract otherwise unenforceable under the statute of frauds may substitute for a writing if there is part performance of the oral contra

1995Nelson's part performance of the alleged oral service agreement may warrant an exception from the statute of frauds defense, depending upon the resolution of disputed issues of fact. [4] "[P]art performance of a *119 contract ... effectively removes it from the bar of the Statute of Frauds." Ridgeway, 163 Colo. at 163 , 430 P.2d at 78 ; accord Siler, 125 Colo. at 445 , 244 P.2d at 881 ; Ralston Oil & Gas Co. v. July Corp., 719 P.2d 334, 339 (Colo.App.1985) ("An oral contract otherwise unenforceable under the statute of frauds may substitute for a writing if there is part performance of the ora

1982See, e.g., Cox v. Cox, 292 Ala. 106 , 289 So.2d 609 (1974).

1982See, e.g., Cox v. Cox, 292 Ala. 106 , 289 So.2d 609 (1974).

1982See, e.g., Twenty-One Turtle Creek Square v. New York State Teachers’ Retirement System, 432 F.2d 64 (5th Cir. 1974).

1982See Bonebrake v. Cox, supra. Here, the unsigned contract between the parties reveals that the primary thrust of the contract was the sale of carpeting.

1982See, e.g., Caplan v. Roberts, 506 F.2d 1039 (9th Cir. 1974); Restatement (Second) of Contracts § 139 (1981).