Mahoney v. Howe, No. S0890-02 CnC (Katz, J., May 4, 2004) 

[The text of this Vermont trial court opinion is unofficial. It has been 

reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is 

not guaranteed.] 

STATE OF VERMONT 

Chittenden County, ss.: 

MAHONEY 

v. 

HOWE 

ENTRY 

 This is an action for specific performance on a contract for land. In 

February 2002, plaintiff buyers and defendant sellers signed an Agreement 

to Buy Land for “a three acre parcel of land located on Route 7 in Milton, 

Vermont.” (Def. Mot. for Summ. J., Ex. C, Aug. 19, 2003.) After sellers 

balked following the May 1, 2002 final approval by the Milton 

Development Review Board, buyers sought to enforce their agreement. 

Sellers now move for partial summary judgment. They argue that the 
description of the three acre property is too vague to satisfy the Statute of 

Frauds, which makes the agreement unenforceable. 

 The agreement which purchasers now seek to enforce was not 

created at the start of the transaction between the two parties. (Pl. Stmnt. of 

Facts, ¶ 1, Oct. 22, 2003.) The deal actually began in November 2001 with 

an oral agreement. Id. At that time, sellers accepted the purchasers’ offer 

to buy a three acre lot that the parties would carve from sellers’ fifteen acre 

parcel. Id. As this transaction required permits and zoning approval, 

purchasers and sellers agreed to split the responsibilities. Id.; (Def. Mot. 

for Summ. J., Ex. C, Aug. 19, 2003.) As the February agreement explains: 

Seller agrees to pay all costs incurred to subdivide a fifteen 

acre parcel, more or less, into two lots. Lot one to be a three 

acre lot and Lot two to contain the remainder of the property. 

Purchaser agrees to submit all permit applications to the 

necessary boards including the Development Review Board 

and Planning Commision. Purchaser will obtain necessary 

paperwork to obtain a septic permit, the services of a 

Surveyor and Site Planning Commission and the State of 

Vermont in order to receive approval for the subdivision and 

a building permit. 

 (Def. Mot. for Summ. J., Ex. C, Aug. 19, 2003.) Following the November 

oral agreement, purchasers created a map illustrating where the three acre 

lot was to be located. (Def. Stmnt. of Undisp. Mat. Facts, ¶ 3, Aug. 19, 

2003.) Sellers approved this map, and the two parties submitted it as part 

of their joint, signed application to the Development Review Board. Id. In 

January 2002, at a preliminary hearing, purchasers learned that the 

property, as delineated, violated a town ordinance and would require 

modifications. (Pl. Stmnt. of Facts, ¶ 1, Oct. 22, 2003.) 
 By this time, sellers had taken up their winter residence in 

Frostproof, Florida. (Def. Stmnt. of Undisp. Mat. Facts, ¶ 5, Aug. 19, 

2003.) Purchasers called sellers and informed them of the zoning wrinkle. 

(Pl. Stmnt. of Facts, ¶ 7, Oct. 22, 2003.) Purchasers proposed making some 

modifications that would satisfy the zoning regulations. (Pl. Stmnt. of 

Facts, ¶¶ 7–11, Oct. 22, 2003.) Soon after, the purchasers faxed the 

Agreement to Buy Land, which the sellers signed and returned. (Def. Mot. 

for Summ. J., Ex. C, Aug. 19, 2003.) On March 15, purchasers faxed the 

sellers a copy of the revised zoning application with a request to sign. (Def. 

Stmnt. of Undisp. Mat. Facts, ¶ 12, Aug. 19, 2003.) The sellers signed and 

returned the application, but they contend that they did not see the entire 

application or any maps. Id. Purchasers claim, however, that they 

informed the sellers about the details involved in revising the zoning 

application and received sellers approval for all changes before the plan 

was submitted. (Pl. Stmnt. of Facts, ¶¶ 3, 7–11, Oct. 22, 2003.) While 

sellers do not deny these conversations, they claim that they did not see a 

map until later. (See generally Def. Stmnt. of Undisp. Mat. Facts, Aug. 19, 

2003.) On May 1, 2002, the Development Review Board approved the 

final plan for the three acre subdivision and gave notice of approval. (Def. 

Mot. for Summ. J., Ex. F, Aug. 19, 2003.) Soon after, sellers renounced the 

sale. (Def. Stmnt. of Undisp. Mat. Facts, ¶ 14, Aug. 19, 2003.) 

 As an agreement for land, this deal comes under the Statute of 

Frauds, which requires that the agreement and its essential elements be in 

writing. 12 V.S.A. § 181(5). Long a part of English and American 

jurisprudence, the Statute dates back to a 1677 British Act of Parliament 

entitled “An Act for the Prevention of Frauds and Perjuries.” J.Dukeminier 

& J. Krier, Property 561 (4th ed., 1998). The language of that act has
remained relatively untouched and has come down to each and every state 

through legislative enactment or common law application. 14 R. Powell & 

P. Rohan, Powell on Real Property ¶ 880, at 81-25 (1998). While some 

contracts no longer come under its purview, it continues to control in real 

estate transactions. Id. The purpose of this law is two-fold. First, the

Statute provides a certain amount of gravity to land transactions. Parties 

must deliberate, come to an agreement, and reduce their understanding to a 

writing. This promotes seriousness and certainty while providing objective 

evidence that the act was genuine. Chomicky v. Buttolph, 147 Vt. 128, 130 

(1986). Second, the Statute is an evidentiary law that functions to protect 

land transactions from oral and perhaps false testimony. Mason v. 

Anderson, 146 Vt. 242, 244 (1982). As such, the Statute functions as a 

shield to block the admission of contracts that require oral testimony to 

provide essential elements. The contract does not have to enumerate every 

detail of the agreement in writing, but it must contain a satisfactory 

enumeration of the basic elements including: signatures, identification of 

the parties, a description of the property, and the price. Powell & Rohan, ¶ 

880[1][d][i], at 81-35. In other words, the Statute of Frauds is not asserted 

to prove or disprove the existence of an agreement or an understanding but 

to measure the resulting agreement against the standards for the required 

elements. 

 As a counter-consideration, the Statute of Frauds is not a sword 

meant to strike down otherwise just obligations on their technical merits. 

10 S. Williston & R. Lord, A Treatise on the Law of Contracts § 29:4, at 

437–38 (4th ed., 1999). Its application depends on a full examination of the 

evidence available and the risk of fraud or perjury to the parties. Id. This 

premise is supported by Vermont law in two ways. First, the Statute of 

Frauds does not outlaw or void oral contracts per se. Troy v. Hanifin, 132 
Vt. 76, 80 (1974). Rather, it restricts the methods parties may use to prove 

the existence of an agreement. Couture v. Lowery, 122 Vt. 239, 244 (1961) 

(oral agreement to sell land at an auction held invalid without written proof 

of the agreement); see also Evarts v. Forte, 135 Vt. 306, 310 (1977) 

(holding that writing failed to demonstrate that parties ever came to a “first 

understanding” over the property to be sold). Second, the Statute is of 

limited application where there is evidence of an agreement. Meyer v. 

Furgat, 133 Vt. 265, 267 (1975) (“The seller cannot avoid his agreement by 

raising a question of identity that was not at issue between the parties when 

the agreement was made.”). 

 In the present case, the question is what agreement should be 

analyzed under the Statute of Frauds. Sellers urge a strict interpretation of 

only the February agreement as the parties’ sole written agreement. As 

purchasers admit, the agreement, by itself, does fail the Statute of Frauds 

because it describes the lot at issue solely in terms of size rather than 

location, landmarks, or metes and bounds. W. Allen, Sufficiency of 

Description or Designation of Land in Contract or Memorandum of Sale, 

under Statute of Frauds, 23 A.L.R.2d 63, § 21 (1952, Supp. 2004) (noting 

the uniformly negative view jurisdictions have about relying solely on size 

to describe land under the Statute of Frauds). The Statute of Frauds, 

however, does not necessarily lock the door to extrinsic evidence to 

supplement the essential elements of a written agreement. As other state 

courts have noted, the description of property “need not be perfectly stated; 

however, the contract must furnish the keys to the identification of the land 

intended to be conveyed.” White v. Plumbing Distributors, Inc., 585 

S.E.2d 135, 137 (Ga. 2003). These keys must “open the door to extrinsic 

evidence which leads unerringly to the land in question.” Wyatt v. Pezzin, 

589 S.E.2d 250, 251 (Ga. 2003). 
 Sellers would argue that even so, the description of “three acres of 

land on Route 7 in Milton, Vermont” does not, in and of itself, provide any 

keys to another document, and that the agreement as a whole does not 

reference any maps or sufficient descriptions of the property’s location. 

This argument, however, takes a very narrow view of what constitutes the 

final written agreement and what reference is necessary to another 

document to bring it into the agreement. The February agreement must be 

examined in the totality of circumstances surrounding its formation and 

contained within the document. Williston & Lord, § 29:17, at 542 (quoting 

New England Dressed Meat & Wool Co. v. Standard Worsted Co., 43 N.E. 

112 (Mass. 1896)). As part of an on-going process, the agreement was a 

snapshot of the parties’ current understanding. It put down in writing what 

the parties had already agreed to, price, size, and conditions, and what they 

had done, zoning and permit work. But, it left the exact description vague 

because, as the parties agree, at the time the exact dimensions of the 

property had not been established. Thus, neither buyer nor seller intended 

the agreement to be their final statement on the issue. As the evidence 

further demonstrates, this indefinite quality was not the result of any lack of 

agreement between the parties but rather a function of the zoning process. 

By the time of the February agreement, they had already submitted a 

detailed map of the property subdivision with the intent that it receive 

approval so that the lot could be sold to the purchasers. Only after learning 

that the zoning laws required modification did the purchasers move to 

change the location of the three acres, and only to the extent necessary to 

satisfy the regulations. 

 It is the zoning process, specifically mentioned in the agreement, 

which directs us to a satisfactory description of the property, namely the 
final application to the Development Review Board. Along with the 

agreement, both applications to the Development Review board carry the 

signatures and presumably the intent of both parties. They further detail the 

intent of the parties to transfer land and the specifics of its subdivision. 

Whether we choose to look at these applications alongside the agreement as 

parts of an larger integrated agreement or as extrinsic evidence incorporated 

implicitly by the agreement’s zoning references is irrelevant. Either way, 

the applications and the agreement provide all of the essential elements for 

an agreement under the Statute of Frauds. The sole missing piece from the 

February agreement, an exact description of the land, is fully provided by 

the maps and descriptions within the second zoning application. 

 To then reject the February agreement on the narrow grounds that it 

does not make explicit reference to the application documents would fly in 

the face of the purpose of the Statute of Frauds and would “avoid [the] 

agreement by raising a question of identity that was not at issue between 

the parties when the agreement was made.” Meyer, 133 Vt. at 267. While 

there is danger in relying on a vague description when the property at issue 

is being carved out of a larger parcel, Evarts, 135 Vt. at 310; 23 A.L.R.2d 

63, at § 13, that is not the case here. The documents, without parol 

evidence, are linked by reference, if not incorporation, and along with the 

circumstances, satisfy any purpose or concern of the Statute of Frauds. 

 This brings us to sellers’ argument that, despite their signatures, they 

were not aware of the details of the second zoning application. The 

implication is that they did not agree to the final layout of the property and 

would not have agreed to it if they had seen the maps. Purchasers, 

however, allege that they informed the sellers of what they were signing 

and the details of the final application. While we will presume, short of 
fraud, that a signor intends to be bound by her signature, it can be a factual 

issue. See, e.g., Bixler v. Bullard, 172 Vt. 53, 58 (2001). At this point, we 

will not give an opinion on the merits of sellers’ argument. Instead, they 

will have to show evidence to support this contention and to contradict their 

signatures. Bacon v. Lascelles, 165 Vt. 214, 218 (1996) (“Summary 

judgment is appropriate only when the record clearly shows that there is no 

genuine issue of material fact . . .”). 

 Based on the foregoing, defendants’ motion for summary judgment 

is denied. A hearing on the merits will be scheduled. 

 Dated at Burlington, Vermont________________, 2004. 

 ________________________ 

 Judge