### 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 DistrictCourt of the ~ighteenth Judicial District, 

### Gallatin County, the Honorable W. W. 

### Lessley presiding. PlaintiffsHillstrom brought this action for a breach of contract against defendantVillano and for an interference with the contract against defendants Gosnay. Plaintiffs sought specific performance of their contract or, inthe alternative, actual damages, and forpunitive damages. The District

### Court,. sittingwithout a 

### jury, found that plaintiffs had a valid and enforceable contractwith defendantVillano for the purchase of real property and thatdefendant Villano breached the contract. The court further found that defendants Gosnay did not interferewith the contract. The court ordered thatdefendantVillano specifically perform the contract with the plaintiffs but denied plaintiffs' request forpunitive damages. Defendants bring this appeal. The real property which isthe subjectmatter of this action is

### a ten-acre tractof land located inGallatin County, Montana, hereinafter referred to as 

### "Tract B." Defendant-appellant Dr. 

### Jeremi Villano is

### a medical doctor whose employment duties atthe 

### timeof this controversy required her to frequently be away from her home inBozeman, Montana, for one and two week periods. Villano is 

### the owner and seller of Tract B 

### inthis action. Her 

### realtor is

### Joyce S

### trahn. From August 1977 toAugust 1978, no offerswere 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 inthe Gallatin Canyon near Bozeman, signed an optiontopurchase Tract A, a ten-acre parcel adjoining Tract B. LeRoy spain agreed torepresent the Gosnays inobtaining Tract B also. Spain 

### later telephoned Strahn and informed her that he had a party interested inTract B and asked Strahn what the commission was and whether or not 

### it would be splitwith him. Strahn informed Spain that the commissionwas 8 percent and that 

### it

### was their policy to splitthe 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) 

### werewilling topay $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 togo to Sundance, Wyoming, and because Strahn wanted something inwriting, Strahn prepared two earnestmoney receipts, one with a salesprice of $54,500 and the other with 

### a sales price of $55,000. Villano signed both earnest money agreements inStrahn's office on August 26, 1978, before leaving forWyoming. 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 inMinneapolis, Minnesota, 

### were interested in purchasing Tract B. Mrs. Hillstrom stated thather husband, Robert A. Hillstrom, was 

### a lawyer and real estateb:roker and that he would callStrahn concerning Tract B. Strahn telephoned Villano inWyoming and informed her Hillstrom was coming intoher of£ice to discuss the purchase of TractB. During this conversation, Strahn also informed Villano that the Gosnays would purchase TractB for $54,500. Strahn advised Villano she could withdraw her written offerto 

### sell to the Gosnays because no earnestmoney had been received and the written offershad not been picked up or signed by them. After being advised of this, Villano agreed towithdraw her offer to the Gosnays to see what the Hillstroms would offer. Strahn telephoned Spain and informed him thatViilano had withdrawn her offer to 

### sell TractB to the Gosnays. The Hillstroms 

### metwith Strahn inher officeon 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 toreduce the salesprice 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 thatVillano 

### was touse in accepting the Hillstroms' cf.'fer, the language of the 

### acceptance having been suggested by Mr. Hillstrom. Strahn toldVillano to go to the telegraph office and sign this telegram. Villano informed Strahn there 

### was no telegraph office inSundance, Wyoming, and Strahn told Villano to send the telegram anyway. Villano telephoned Western Union and dictated the telegram 

### as she was instructed todo. The telegram 

### was sent toLandmark Real Estate, attentionJoyce Strahn. It stated: "PLEASE CONSIDER THIS AS MY WRITTEN ACCEPTANCE OF THAT OFFER MADE ON MY REAL ESTATE INTHE 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. Followingnegotiations conducted through their respective attorneys, villano and the Gosnays reached an agreement for the sale of Tract B by Villano to the Gosnays ina contract dated October 20, 1978. Under this contract, Villano agreed to 

### sell the property to the Gosnays for the price of $54,500. villanowas not required topay any real estate commissions out of thisprice and the Gosnays agreed tohold Villano harmless and indemnify her for allexpenses 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 salesprice tobe $55,000 and had not consented orbeen told that her 

### real estate agent would splitthe commission and reduce the purchase price to $52,800. On November 29, 1978, the Hillstroms filed this action againstVillano and the Gosnays. There 

### isbut one issue forreview by this Court: Whether the typewritten name "JEREMI VILLANO MD" 

### atthe bottom of a telegram 

### isa sufficient subscription to satisfy the requirements of the statuteof frauds? Appellants argue that there are two basic requirements of the statuteof frauds, section 28-2-903(1) (d),MCA. Appellants concede that the firstrequirement, that there be

some note ormemorandum of the agreement inwriting, has been satisfied. The second requirement, that the writing be subscribed by the party tobe charged orby his agent, allegedly has not been satisfied in this case. It 

### is argued that the typewritten name "JEREMI VILLANO MD" atthe bottom of the telegram isnot a sufficient subscriptionunder the statute of frauds, which appellants claim requires an actualsigning with one's own hand. In addition, the statute requires that if an agreement 

### ismade by an agent of the party tobe 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 ina subscribed writing tomake 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 thatVillano did not have the requisite intent to authenticate the typewritten name "JEREMI VILLANO MD" atthe bottom of the telegram asher signature. The Montana statuteof frauds provides: "What contractsmust be inwriting. 

### (1)The following agreements are invalid unless the 

### same or some note ormemorandum thereof 

### is inwriting and subscribed by the party tobe charged or his agent:

"(d)An agreement for the leasing for 

### a longer period than 1year or for the 

### sale of 

### real property or of an interest therein. Such agreement if made by an agent of the party sought tobe charged, is invalid unless the authority of the agent 

### is inwriting and subscribed by theparty sought tobe charged." Section 28-2-903 

### (1) (d)

## ,MCA. Appellants concede that the firstrequirement of the statute, that there be some note or memorandum of the agreement inwriting, has been satisfiedby the telegram and the "EarnestMoney Receipt and Agreement to Sell and Purchase" with attached documents. A telegram may constitute a sufficientwritten memorandum to satisfy the requirements of the statuteof frauds. Yaggy v. B.V.D. Co. (1970), 7N.C.App. 590, 173 S.E.2d 496; 72 Am.Jur.2d Statuteof 

### -Frauds 9300; 37 C.J.S. Frauds, Statute 

### - of,"No particular form of 

# .. . instrument 

### is necessary to constitute 

### a memorandum or note inwriting under the statute of frauds 

# . . . It 

### is the general rule that a memorandum wholly untechnical inform may be sufficient. Itmay consist of any kind of writing 

# .. .I1 Johnson v. Ogle (1947), 120 Mont. 176, 181P.2d 789, 791, quoting 49 Am.Jur. Statuteof Frauds S321. 

### - It 

### is the second requirement of the statute of frauds which appellants contend was not satisfied inthe transactions between the Hillstroms and Villano. This 

### is the 

### requirement that the writing be "subscribed by the party to be charged orhis agent

# .. ."and that "[sluch agreement, if made by an agent of the party sought tobe charged, 

### is invalid unless the authority of the agent 

### is inwriting and subscribed by the party sought tobe charged." Section 28- 2-903, MCA. Villano 

### is the party sought tobe charged in thisparticular suitand the person who must have subscribed



### a written note ormemorandum under the statuteof frauds. Thus, the narrow issue tobe decided 

### iswhether the typewritten name "JEREMI VILLANO MD" atthe bottom of the 

### telegram 

### is a sufficient subscription to satisfy the requirements of the statuteof frauds. The DistrictCourt 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 consistentlyheld that a.nymark affixed toa writing with the intent to authenticate 

### it constitutes a sufficient subscription by the party sought tobe charged. 72 Am.Jur.2d Statute 

### - of Frauds S358; 37 C.J.S. Frauds, Statuteof, 

### - 85202-204; 4 Williston, Contracts, 8585 (3rdEd. 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 asimilar definition of the word "signed." Section 30-1- 201(39), McA.) Provided the necessary intent to authenti

### cate is shown, the typewritten "signature" on a telegram is

a proper subscriptionwithin the meaning of the statute. Yaggy v. B.V.D. Co. (1970), 7 N.C.App. 590, 173 S.E.2d 496, 502; La MarHosiery Mills, Inc. v. Credit and Commodity Corporation (1961), 28 Misc.2d 764, 216 N.Y.S.2d 186, 190; Joseph DeNunzio FruitCo. 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 inwriting inthat 

### 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 statuteprovides that the agent's authority must be inwriting subscribed by the party sought tobe charged only if an agreement for the same of 

### real property is "made" by the agent. It isapparent inthis case that the agreement 

### was not "made" by the telegraph company and that the company was villano's agent, if atall, only for the limited purpose of communicating her telegram. A side issue arose inthisappeal 

### as towhether there 

### is substantial evidence inthe record to support the v is-trictcourt's findings thatVillano understood the 

### terms of the ~illstroms' offer and that she infactaccepted the offer intending her teletypewritten signature to authenti

### cate her telegram. Notwithstanding appellants' contention thatVillano did not intend her typewritten name to authen

### ticate the telegram because she understood the sales price tobe $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 splitthe commission, the DistrictCourt 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 toauthenticate 

### isestablished on the face of the telegram which 

### states, "PLEASE CONSIDER THIS MY WRITTEN ACCEPTANCE 

# . .." The fact that the wording tobe used 

### was dictated by Hillstrom toStrahn, and then over the phone to Villano, indicates thatboth parties intended tobind 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 toVillano 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 salesprice of $55,000 with an 8 percent commission. v hisevidence establishes Villano's intent to authenticate her typewritten signature on the telegram. We note that this case involves a contract which in facthas been admitted. Villano's admission of the agreement 

### is important because incases involving admitted contracts, 

### we have construed the statute of frauds 

### less technically, refusing to allow the statute tobe used so 

### as to defeat itspurpose toprevent the commission of a fraud. Farmers Elevator Co. 

### v. Anderson (1976), 170Mont. 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