
    No. 153
    OSSAGE v. FOLEY et
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 2163.
    Decided July 16, 1923.
    561. STATUTE OF FRAUDS—When action at law is chosen for recovery of damages, part performance does not apply—no action can be brought when no memorandum of agreement.
    Published only in Ohio Law Abstract
   BUCHWALTER, J.

Epitomized Opinion

The action in the Hamilton Common Pleas was to recover damages for failure of Foley to execute and deliver to Ossage a lease for certain lands in accordance with an oral agreement claimed to have been made between Ossage and Foley.

Attorneys—Lewis W. Diemer, T. N, Maxe-don, for Ossage; Dempsey & Dempsey; Creed & Creed, for Foley; all of Cincinnati.

It was averred by Ossage that the agreement provided for a lease for five years with privilege of renewal and purchase. No written agreement was executed. The Common Pleas sustained Foley’s demurrer to the amended petition, and Ossage not desiring to plead further, judgment of dismissal was rendered. The Court of Appeals held:

Since the action is founded upon an oral agreement concerning an interest in land, and also that it was not to be performed within one year; by the Statute of Frauds, 8621 GC, no action can be brought by Ossage to charge Foley unless there was a written note or memorandum of the agreement upon which the action is based. Since the agreement was never reduced to writing, unless it could have been taken out of said statute by part performance, it is within the Statute of Frauds and void. But Ossage has seen fit to choose an action at law for damages rather than an equitable action; therefore the doctrine of part performance does not here apply. Finding no error the judgment of Common Pleas was affirmed.  