No. 79-102 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

ROBERT A. HILLSTROM and 

PATRICIA HILLSTROM, husband 

and wife, 

Plaintiffs and Respondents, 

MAURICE GOSNAY and PAMELA GOSNAY, 

husband and wife, and JEREMI VILLANO, 

Defendants and Appellants. 

Appeal from: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

Honorable W. W. Lessley,Judge presiding. 

Counsel of Record: 

For Appellants: 

Moore, Rice, O'Connell & Refling, Bozeman, Montana 

Mark D. Refling argued, Bozeman, Montana 

For Respondents: 

Landoe, Brown, Planalp, Kommers and Lineberger, 

Bozeman, Montana 

J. Robert Planalp argued, Bozeman, Montana 

Submitted: May 23, 1980 

Decided: JUL 1 - 

Filed: dUL 1 - 1904 - -. 
Mr. ~ustice Gene B. Daly delivered the Opinion of the Court. 

 his is an appeal from a judgment of the District Court 

of the ~ighteenth Judicial District, Gallatin County, the 

Honorable W. W. Lessley presiding. Plaintiffs Hillstrom 

brought this action for a breach of contract against defendant Villano and for an interference with the contract 

against defendants Gosnay. Plaintiffs sought specific 

performance of their contract or, in the alternative, actual 

damages, and for punitive damages. The District Court,. 

sitting without a jury, found that plaintiffs had a valid 

and enforceable contract with defendant Villano for the 

purchase of real property and that defendant Villano breached 

the contract. The court further found that defendants 

Gosnay did not interfere with the contract. The court 

ordered that defendant Villano specifically perform the 

contract with the plaintiffs but denied plaintiffs' request 

for punitive damages. Defendants bring this appeal. 

The real property which is the subject matter of this 

action is a ten-acre tract of land located in Gallatin 

County, Montana, hereinafter referred to as "Tract B." 

Defendant-appellant Dr. Jeremi Villano is a medical doctor 

whose employment duties at the time of this controversy 

required her to frequently be away from her home in Bozeman, 

Montana, for one and two week periods. Villano is the owner 

and seller of Tract B in this action. Her realtor is Joyce 

S trahn. 

From August 1977 to August 1978, no offers were received 

for the purchase of Tract B although the property had been 

advertised for sale. On July 31, 1978, Maurice and Pamela 

Gosnay, residents of Liberty, Missouri, who own a vacation 

home in the Gallatin Canyon near Bozeman, signed an option 
to purchase Tract A, a ten-acre parcel adjoining Tract B. 

LeRoy spain agreed to represent the Gosnays in obtaining 

Tract B also. Spain later telephoned Strahn and informed 

her that he had a party interested in Tract B and asked 

Strahn what the commission was and whether or not it would 

be split with him. Strahn informed Spain that the commission was 8 percent and that it was their policy to split the 

commission with the buyer's broker. 

After several rejected offers, Spain telephoned Strahn 

on August 25, 1978, and informed her that his clients (the 

Gosnays) were willing to pay $54,500 for Tract B. Villano 

agreed to accept $54,500 but stated that she would rather 

have $55,000. Because Villano was leaving town the next 

day to go to Sundance, Wyoming, and because Strahn wanted 

something in writing, Strahn prepared two earnest money 

receipts, one with a sales price of $54,500 and the other 

with a sales price of $55,000. Villano signed both earnest 

money agreements in Strahn's office on August 26, 1978, 

before leaving for Wyoming. Strahn conveyed both offers 

over the telephone to Spain. 

The next day, August 27, 1978, Patricia L. Hillstrom 

telephoned Strahn and informed her that she and her husband, 

who reside in Minneapolis, Minnesota, were interested in 

purchasing Tract B. Mrs. Hillstrom stated that her husband, 

Robert A. Hillstrom, was a lawyer and real estate b:roker and 

that he would call Strahn concerning Tract B. 

Strahn telephoned Villano in Wyoming and informed her 

Hillstrom was coming into her of £ice to discuss the purchase 

of Tract B. During this conversation, Strahn also informed 

Villano that the Gosnays would purchase Tract B for $54,500. 

Strahn advised Villano she could withdraw her written offer 
to sell to the Gosnays because no earnest money had been 

received and the written offers had not been picked up or 

signed by them. After being advised of this, Villano agreed 

to withdraw her offer to the Gosnays to see what the Hillstroms would offer. Strahn telephoned Spain and informed 

him that Viilano had withdrawn her offer to sell Tract B to 

the Gosnays. 

The Hillstroms met with Strahn in her office on August 

28, 1978. They offered $55,000 for the property. Thereafter, Mr. Hillstrom approached Strahn concerning Strahn's 

splitting the real estate commission with him. It was 

decided to reduce the sales price by one-half of the commission and reduce the stated commission to 4 percent. 

After discussing the offer with Villano, Strahn dictated the wording of a telegram that Villano was to use in 

accepting the Hillstroms' cf.'fer, the language of the acceptance having been suggested by Mr. Hillstrom. Strahn 

told Villano to go to the telegraph office and sign this 

telegram. Villano informed Strahn there was no telegraph 

office in Sundance, Wyoming, and Strahn told Villano to send 

the telegram anyway. Villano telephoned Western Union and 

dictated the telegram as she was instructed to do. The 

telegram was sent to Landmark Real Estate, attention Joyce 

Strahn. It stated: 

"PLEASE CONSIDER THIS AS MY WRITTEN ACCEPTANCE 

OF THAT OFFER MADE ON MY REAL ESTATE IN THE 

GALLATIN CANYON AS PRESENTED TO LANDMARK REALTY 

BY ROBERT A. AND PATRICIA L. HILLSTROM ON 

AUGUST 28, 1978. 

" JEREMI VILLANO MD" 

In a complaint dated September 13, 1978, the Gosnays 

sued Dr. Villano and Landmark Real Estate (Joyce Strahn) in 

an effort to establish some rights to the land. Following 
negotiations conducted through their respective attorneys, 

villano and the Gosnays reached an agreement for the sale of 

Tract B by Villano to the Gosnays in a contract dated October 20, 1978. Under this contract, Villano agreed to sell 

the property to the Gosnays for the price of $54,500. 

villano was not required to pay any real estate commissions 

out of this price and the Gosnays agreed to hold Villano 

harmless and indemnify her for all expenses incurred defending any litigation commenced by the Hillstroms. 

Villano gave the Hillstroms notice of rescission in 

letters dated October 18 and October 20, 1978, on the grounds 

that her consent was obtained by mistake and fraud in that 

she believed the sales price to be $55,000 and had not 

consented or been told that her real estate agent would 

split the commission and reduce the purchase price to 

$52,800. On November 29, 1978, the Hillstroms filed this 

action against Villano and the Gosnays. 

There is but one issue for review by this Court: 

Whether the typewritten name "JEREMI VILLANO MD" at the 

bottom of a telegram is a sufficient subscription to satisfy 

the requirements of the statute of frauds? 

Appellants argue that there are two basic requirements 

of the statute of frauds, section 28-2-903(1) (d), MCA. 

Appellants concede that the first requirement, that there be 

some note or memorandum of the agreement in writing, has 

been satisfied. The second requirement, that the writing be 

subscribed by the party to be charged or by his agent, 

allegedly has not been satisfied in this case. It is argued 

that the typewritten name "JEREMI VILLANO MD" at the bottom 

of the telegram is not a sufficient subscription under the 

statute of frauds, which appellants claim requires an actual 
signing with one's own hand. In addition, the statute 

requires that if an agreement is made by an agent of the 

party to be charged, the agent's authority must be in writing and subscribed by the party 'LO be charged. Since the 

telegraph company, as an agent, was not authorized in a 

subscribed writing to make the agreement by "signing" 

Villano's typewritten name, appellants contend that the 

statute was not satisfied. Therefore, the Hillstrom-Villano 

agreement is invalid and void. Secondly, appellants argue 

that Villano did not have the requisite intent to authenticate the typewritten name "JEREMI VILLANO MD" at the 

bottom of the telegram as her signature. 

The Montana statute of frauds provides: 

"What contracts must be in writing. (1) The 

following agreements are invalid unless the 

same or some note or memorandum thereof is 

in writing and subscribed by the party to be 

charged or his agent: 

"(d) An agreement for the leasing for a longer 

period than 1 year or for the sale of real 

property or of an interest therein. Such 

agreement if made by an agent of the party 

sought to be charged, is invalid unless the 

authority of the agent is in writing and 

subscribed by the party sought to be charged." 

Section 28-2-903 (1) (d) , MCA. 

Appellants concede that the first requirement of the 

statute, that there be some note or memorandum of the agreement in writing, has been satisfied by the telegram and the 

"Earnest Money Receipt and Agreement to Sell and Purchase" 

with attached documents. A telegram may constitute a sufficient written memorandum to satisfy the requirements of 

the statute of frauds. Yaggy v. B.V.D. Co. (1970), 7 N.C.App. 

590, 173 S.E.2d 496; 72 Am.Jur.2d Statute - of Frauds 9300; 

37 C.J.S. Frauds, Statute of, - 
"No particular form of . . . instrument is 

necessary to constitute a memorandum or note 

in writing under the statute of frauds . . . It is the general rule that a memorandum wholly 

untechnical in form may be sufficient. It may 

consist of any kind of writing . . .I1 Johnson 

v. Ogle (1947), 120 Mont. 176, 181 P.2d 789, 

791, quoting 49 Am.Jur. Statute - of Frauds S321. 

It is the second requirement of the statute of frauds 

which appellants contend was not satisfied in the transactions between the Hillstroms and Villano. This is the requirement that the writing be "subscribed by the party to 

be charged or his agent . . ." and that "[sluch agreement, 

if made by an agent of the party sought to be charged, is 

invalid unless the authority of the agent is in writing and 

subscribed by the party sought to be charged." Section 28- 

2-903, MCA. Villano is the party sought to be charged in 

this particular suit and the person who must have subscribed 

a written note or memorandum under the statute of frauds. 

Thus, the narrow issue to be decided is whether the typewritten name "JEREMI VILLANO MD" at the bottom of the telegram is a sufficient subscription to satisfy the requirements of the statute of frauds. The District Court found 

that it was. We agree. 

This Court has never ruled on what c:onstitutes a valid 

subscription for purposes of the statute of frauds. Other 

courts, however, have consistently held that a.ny mark affixed to a writing with the intent to authenticate it constitutes a sufficient subscription by the party sought to be 

charged. 72 Am.Jur.2d Statute - of Frauds S358; 37 C.J.S. 

Frauds, Statute - of, 85202-204; 4 Williston, Contracts, 8585 

(3rd Ed. 1961) ; Restatement of Contracts S210 (1936). (See 

also the Uniform Commercial Code, which, although it does 

not apply to sales of real property, nevertheless has a 
similar definition of the word "signed." Section 30-1- 

201(39), McA.) Provided the necessary intent to authenticate is shown, the typewritten "signature" on a telegram is 

a proper subscription within the meaning of the statute. 

Yaggy v. B.V.D. Co. (1970), 7 N.C.App. 590, 173 S.E.2d 496, 

502; La Mar Hosiery Mills, Inc. v. Credit and Commodity 

Corporation (1961), 28 Misc.2d 764, 216 N.Y.S.2d 186, 190; 

Joseph DeNunzio Fruit Co. v. Crane (S.D.Ca1. 1948), 79 

F.Supp. 117, 128-129. 

The two Montana cases cited by appellants in support of 

their narrow treatment, In re Sales' Estate (1939), 108 

Mont. 202, 89 P.2d 1043, and In re Miller's Estate (1908), 

37 Mont. 545, 97 P. 935, as well as the California case 

cited, In re Moore's Estate (1949), 92 Cal.App.2d 120, 206 

P.2d 413, deal with the test'xnentary formalities for executing a will, not with the statute of frauds, and cannot be 

used here. Neither does Schwedes v. Romain (1978), - 

Mont. , 587 P.2d 388, 35 St.Rep. 1784, address the issue 

presented here because there was no memorandum of the parties' agreement in writing in that case. 

We need not address the general question of whether or 

not a telegraph company is the agent of the sender of a 

telegram. Our statute provides that the agent's authority 

must be in writing subscribed by the party sought to be 

charged only if an agreement for the same of real property 

is "made" by the agent. It is apparent in this case that 

the agreement was not "made" by the telegraph company and 

that the company was villano's agent, if at all, only for 

the limited purpose of communicating her telegram. 

A side issue arose in this appeal as to whether there 

is substantial evidence in the record to support the v is- 
trict court's findings that Villano understood the terms of 

the ~illstroms' offer and that she in fact accepted the 

offer intending her teletypewritten signature to authenticate her telegram. Notwithstanding appellants' contention 

that Villano did not intend her typewritten name to authenticate the telegram because she understood the sales price 

to be $55,000 with an 8 percent commission rather than the 

$52,800 with a 4 percent commission which resulted after 

Strahn and Hillstrom agreed to split the commission, the 

District Court found otherwise. 

Villano ' s intent to authenticate her typewritten name 

on the telegram as her valid subscription is, of course, 

required to satisfy the statute of frauds. Radke v. Brenon 

(1965), 271 ~inng35, 134 N.W.2d 887; Marks v. Walter G. 

McCarty Corp. (1949), 33 Cal.2d 814, 205 P.2d 1025, 1028. 

The intent to authenticate is established on the face of the 

telegram which states, "PLEASE CONSIDER THIS MY WRITTEN 

ACCEPTANCE . . ." The fact that the wording to be used was 

dictated by Hillstrom to Strahn, and then over the phone to 

Villano, indicates that both parties intended to bind themselves and close the deal. 

This intent is supported further by plaintiff's testimony that she understood she had a firm deal, notwithstanding her contention that she thought the terms of the deal to 

be otherwise. The District Court accepted the testimony of 

Strahn that the figure of $52,800, as written on the "~arnest 

Money Receipt and Agreement to Sell and Purchase," was read 

to Villano over the telephone by Strahn. In any case, 

Villano received $88 more for her property under the split 

commission arrangement than she would have received under a 

sales price of $55,000 with an 8 percent commission. v his 
evidence establishes Villano's intent to authenticate her 

typewritten signature on the telegram. 

We note that this case involves a contract which in 

fact has been admitted. Villano's admission of the agreement is important because in cases involving admitted contracts, we have construed the statute of frauds less technically, refusing to allow the statute to be used so as to 

defeat its purpose to prevent the commission of a fraud. 

Farmers Elevator Co. v. Anderson (1976), 170 Mont. 175, 552 

P.2d 63; Gravelin v. Porier (1926), 77 Mont. 260, 250 P. 

823, 829. 

The judgment of the District Court is affirmed. 

We concur: 

. . Chief Justice 

Q.~JW-, , Justices