### *T he HONORABLE ADRIAN G. DUPLANTIER, United States Distric t

Judge for the Eastern District of Louisiana, sitting b y designation. The HONORABLE DAVID D. NOCE, United States Magistrate Judge 1 

### for the Eastern District of Missouri, presiding by consent of the parties pursuant to 28 U.S.C. § 636(c)(1). ___________ No. 95-1592

___________ James W. Smith, * * Plaintiff - Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. International Paper Company, * * [PUBLISHED] Defendant - Appellee. *

___________ Submitted: November 13, 1995 Filed: June 24, 1996

___________ Be fore McMILLIAN and LOKEN, Circuit Judges, and DUPLANTIER, Distric t * Judge.

___________

PER CURIAM.
In this diversity action for breach of contract, the district court 1 granted summary judgment in favor of defendant I nternational Paper Company ("IP"), concluding that plaintiff James W. Smith failed to satisfy th e Missouri statute of frauds. See Mo. Rev. Stat. § 432.010. Smith appeals, conceding that the statute of frauds applies to his alleged contract t o purcha se an IP lumberyard, but arguing that he submitted sufficien t documentary evidence of that contract. We affirm.

### -2- In 198 9, IP decided to sell its retail lumberyard in Hannibal , Missouri. Smith, the lumberyard's manager, expressed an interest in buyin g it. Smith and IP eventually signed an Asset Purchase Agreement dated Marc h 20, 1990 (the "March 20 Agreement"). However, Smith quickly concluded tha t the purchase price in the March 20 Agreement was too high. Therefore, he did not seek Small Business Administration financing, as the March 2 0 Agreement required, and notified IP that he did not intend to go forward under that Agreement.

Be ginning in July 1990, Smith submitted a series of new purchas e offers, which IP rejected. On November 16, he submitted another written offer , "subject to the approval of a local lending institution and th e Small Business Admini stration." Three days later, an IP "E-mail" message requested confirmation that Smith's latest proposal included an undertakin g to retain the lumberyard's employees; Smith agre ed. On November 30, there
was a telephone conversation between Smith and IP's comptroller. Creditin g Smith's version of that conversation, as we must in reviewing the grant of summary judgment, the comptroller orally accepted Smith's November 1 6 offer, requesting that Smith provide a $10,000 down payment and th e requisite financing commitment.

On December 4, Smith mailed IP a $10,000 check and a letter fro m Hannibal National Bank that was supportive but n ot a firm loan commitment. IP initially endorsed and deposited Smith's check. However, on December 21, IP wrote Smith rejecting his "conditional" offer. IP then returne d Smith's $10,000 and s old the lumberyard for a lower price to a buyer with
secure financing. Smith sued, claiming breach of a contract to sell him the lumberyard.
To satisfy the Missouri statute of frauds, a writing must conta in all the essential terms o f the contract and must be signed by the party to be charged. Several doc uments in combination may supply the essential terms of the contract, "as long as one

### -3-

document r efers to the other, or their contents clearly show they ar e related." Vess Beverages, Inc. v. Paddington Corp. , 941 F.2d 651, 654 (8t h Cir. 1991). Whether documents satisfy the statu te of frauds is a question of law. Ahrens v. Dodd , 863 S.W.2d 611, 613 (Mo. App. 1992).

We agree with the district court that Smith has not satisfied th e stat ute of frauds. Smith first contends that the March 20 Agreemen t satisfies the statute because the parties later simply modified its terms. This fact-intensive theory was not pleaded or ar gued in the district court and may not be raised initially on appeal. See Dorothy J. v. Little Rock Sch. Dist. , 7 F.3d 729, 734 (8th Cir. 1993). Mo reover, contracts required to be written under the statute of frauds may no t be modified orally. See Warrenton Campus Shopping Ctr., Inc. v. Adolphus , 787 S.W.2d 852, 855 (Mo. App. 1990). Finally, the summary judgment record does not support thi s modification theory -- the March 20 Agreement pr ovides that it may only be modified in writing, none of the later documents refer to that Agreement, and Smith himself testified that the March 20 Agreement "just died" an d "went away."

None of the remaining documents of record, individually or i n combination, contain either an offer by IP to se ll the lumberyard, or IP's acceptance of an offer by Smith to buy it. IP's E-mail message concerning the r etention of employees merely sought to clarify an implied term o f Smith's cryptic Novem ber 16 offer. IP's deposit of Smith's $10,000 check is insufficient because part payment of the purc hase price for real estate is not partial perfor mance that removes an oral contract from the statute of frauds. See Gillespie v. Pulsifer , 655 S.W.2d 123, 126 (Mo. App. 1983)

. Smith may not flesh out the terms of these documents with parol evidence to satisfy the statute of frauds. Vess Beverage s , 941 F.2d at 655-56 n.6.

### -4- When the party to be charged is the putative seller of real estate, there must be a writing signed by that party ref lecting a promise to sell. Gillespie , 655 S.W.2d at 125. Because Smith failed to come forward with such a writing, the district court properly granted summary judgmen t dismissing his claim as barred by the Missouri statute of frauds. Th e judgment of the district court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.