(concurring/dissenting) — I agree that the earnest money agreement is unenforceable because certain material terms were omitted. I write separately to take issue with the majority’s categorical refusal to apply a judicial admission exception to the rule announced in Martin v. Seigel, 35 Wn.2d 223, 212 P.2d 107, 23 A.L.R.2d 1 (1949).
*893In Martin, this court overruled Thompson, Swan & Lee v. Schneider, 127 Wash. 533, 221 P. 334 (1923)6 and stated that real property had to be described by the correct lot number, block number, addition, city, county, and state in a contract or agreement to sell or convey it. Martin, 35 Wn.2d at 229. While noting that this was a minority view, this court stated: “We feel that it is fair and just to require people dealing with real estate to properly and adequately describe it, so that courts may not be compelled to resort to extrinsic evidence in order to find out what was in the minds of the contracting parties.” Id. at 228. The concern expressed in Martin reflected the overall purpose of the statute of frauds, namely to protect the defendant against perjured testimony.
In this case, respondents Mosers and Kolbecks admitted in their answer the description of the property as stated in the complaint. At the same time, they argued that the description was inadequate under Martin and therefore the earnest money agreement should not be enforced. Under these circumstances, petitioners ask us to adopt a judicial admissions exception to the Martin rule, an exception already recognized by this court in other contexts.
Judicial admissions, such as the admission in respondents’ answer, have been defined as “stipulations by a party or its counsel that have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact.” 2 McCormick on Evidence, Title 10, The Hearsay Rule and Its Exceptions § 254, at 142 (John W Strong ed., 4th ed. 1992) (emphasis added). A stipulation is “[a]n express waiver made in court or preparatory to trial by the party or his attorney conceding for the purposes of the trial the truth of some alleged fact,” with the effect that “one *894party need offer no evidence to prove it and the other is not allowed to disprove it.” 9 John Henry Wigmore, Evidence in Trials at Common Law § 2588, at 821 (James H. Chadbourn rev. ed. 1981) (emphasis added).
The Fifth and Eleventh Circuit Courts of Appeals have stated, “[Jjudicial admissions are proof possessing the highest possible probative value. Indeed, facts judicially admitted are facts established not only beyond the need of evidence to prove them, but beyond the power of evidence to controvert them.” Best Canvas Prods. & Supplies, Inc. v. Ploof Truck Lines, Inc., 713 F.2d 618, 621 (11th Cir. 1983) (quoting Hill v. Federal Trade Comm’n, 124 F.2d 104, 106 (5th Cir. 1941)).
Here, because respondents Mosers and Kolbecks admitted the correctness of the description in Key Design’s complaint, the need to take evidence was eliminated. It is clear what property the contracting parties had in mind when they signed the earnest money agreement. The purpose of the Martin rule, as with the statute of frauds in general, is to protect a party from having a contract enforced against it based on perjured oral evidence. Because of the judicial admission here, the need for the protection was eliminated.
In the statute of frauds context, the general judicial admissions exception “allows courts to enforce oral agreements involving title to real estate as long as the party against whom enforcement is sought has admitted in court or during discovery that the oral agreement existed.” Peter J. Shedd, The Judicial Admissions Exception to the Statute of Frauds in Real Estate Transactions, 19 Real Est. L.J. 232 (1991). The logic of this exception, which has been expressly incorporated in U.C.C. § 2-201 (3) (b), has been recognized by various courts. “When the contract alleged is admitted by the party charged, there is no danger of perjured evidence or other fraud on that score, and the cause of justice is disserved by allowing that party to interpose the statute as a defense.” Anchorage-Hynning & Co. v. Moringiello, 697 F.2d 356, 362 (D.C. Cir. 1983). The same logic applies here. Respondents Mosers and Kolbecks *895admitted to the correctness of the property description in the complaint, consequently there is no threat of peijured evidence from Key Design.
In Powers v. Hastings, 20 Wn. App. 837, 582 P.2d 897 (1978), aff’d, 93 Wn.2d 709, 612 P.2d 371 (1980), the Court of Appeals held that the testimony of a lessor in open court regarding the details of an oral lease with an option to purchase constituted sufficient “writings” to satisfy the statute of frauds because court testimony is “equivalent to signed depositions.” Id. at 846. In addition, the court stated that because both parties testified as to the existence of the lease “[t]he feared uncertainty and potential for fraud, inherent in such oral agreements and which is the basis for the statute of frauds’ bar against enforcement, are clearly removed by their testimony.” Id.
While the case here is factually distinguishable because there is a written earnest money agreement, the same logic applies. Where parties admit the description of the property, “uncertainty and potential for fraud” are removed by that admission which is the underlying reason for the Martin rule in the first place.
Nevertheless, the majority categorically rejects the admission exception. First, the majority asserts, “This court has consistently passed up opportunities to recognize the judicial admissions exception,” noting that this court affirmed Powers but on other grounds. Majority at 885. While it is true that this court held there was substantial evidence so as not to sustain a judgment n.o.v., from which the jury could make its findings as to the terms, character and evidence of the contract, this court noted there was sufficient evidence (an affidavit signed and admitted as testimony) to establish the agreement “to remove the danger of fraud arising from uncertainty, thereby excusing application of the statute [of frauds].” Powers v. Hastings, 93 Wn.2d 709, 717, 612 P.2d 371 (1980).
In a case directly on point, the Court of Appeals in Sea-Van Invs. Assocs. v. Hamilton, 71 Wn. App. 537, 861 P.2d 485 (1993) rev’d on other grounds, 125 Wn.2d 120, 881 P.2d *8961035 (1994) held, inter alia, that the requirement that a full legal description be included in a contract for sale of real property was met where the property description was admitted to or stipulated in court proceedings. Id. at 546-47. The court reasoned that because the defendants admitted the legal descriptions of the parcels in question in court documents, “the question of whether they had in mind identical parcels of land” was conclusively settled. Id. at 544. The court stated:
Once a legal description is alleged and admitted in court documents, . . . the identity of the properties is unquestionable and can no longer be an issue of law. Moreover, the trial court may proceed “without recourse to oral testimony”, one of the prime tests of whether the statute of frauds has been complied with. Bigelow [v. Mood], 56 Wn.2d [340, 341, 353 P.2d 429 (1960)]. While the statute of frauds generally has to be met at the time of the formation of the contract, we conclude that in circumstances where the property description is admitted to or stipulated, a party may not hide behind the statute of frauds by claiming an insufficient description in the contract. If a party were allowed to do so, the statute of frauds might well further a fraud rather than prevent one.
Id. at 545.
Reversing on other grounds, this court specifically stated, “We leave the viability of the ‘judicial admissions’ doctrine for another day.” Sea-Van Invs. Assocs. v. Hamilton, 125 Wn.2d 120, 122, 881 P.2d 1035 (1994). Rather than pointing to a rejection of the doctrine, our discussion in both Powers and Sea-Van indicates theoretical approval.
Next, the majority states that to apply a judicial admissions exception to these circumstances would be inconsistent with reaffirming the rule in Martin. However, if the rationale behind the rule is to protect against perjured testimony, it is unclear how the purpose is furthered by not applying the exception. To do otherwise could contribute to fraud.
Despite the majority’s reasoning that the admission by the respondents furthered the purpose of the statute of *897frauds and therefore should he able to assert the statute, it remains anomalous to permit respondents to admit there is no dispute about what property is at issue and at the same time assert the statute of frauds on the ground that the description is incomplete. In Roth Steel Prods, v. Sharon Steel Corp., 705 F.2d 134 (6th Cir. 1983), the court stated, “The judicial admission exception to the statute of frauds represents a specific legislative response to this anomaly: no longer may a party admit the existence of a contract, or facts which may establish existence of a contract, and simultaneously claim the benefits of the statute of frauds.” Id. at 142 (emphasis added). The Minnesota Supreme Court has stated:
When we recall the historical fact that the statute of frauds was originally enacted simply to prevent the frauds to which transfers of land by parol and livery of seizin lent themselves, we will readily recognize that its basic purpose is only to provide reasonable safeguards to insure honest dealing and that it was not enacted to make a fetish of literal statutory compliance or a fetish of requiring a perfect written contract.
Doyle v. Wohlrabe, 243 Minn. 107, 110, 66 N.W.2d 757 (1954). Refusing to apply a judicial admission exception where respondents have admitted in their answer to the property description does approach making a fetish of requiring a complete legal property description.
The majority is also concerned that it found no case law to support a judicial admission exception to the Martin rule. This is not surprising, however, given that the majority rule is that a street address, when accompanied only by the state and municipality, is sufficient to satisfy the statute of frauds.
Finally, the majority notes that the preprinted form put the parties on notice that it should contain a legal description, inferring that Key Design should have included a full legal description. However both parties, not just Key Design, were put on notice. Likewise, the form put both parties on notice that “this is a legally binding contract.” Majority at 877 (Real Estate Purchase and Sale Agree*898ment). It is unclear why Mr. Moser is entitled to consider the agreement tentative merely because he testified that he considered the two earnest money agreements to be only part of a negotiating process.
While I disagree with the majority’s categorical rejection of the judicial admissions exception, I concur in the result as the earnest money agreement lacked other material terms, making it unenforceable.
Alexander, J., concurs with Madsen, J.
See Thompson, Swan & Lee v. Schneider, 127 Wash. 533, 221 P. 334 (1923) (holding that a street address describing real property in a real estate contract was sufficient to satisfy the statute of frauds). “In all jurisdictions, except the state of Washington ... a designation of real estate by street number appears to be at least prima facie sufficient where the state and municipality (or the town) are specified in the writing.” WW Allen, Annotation, Sufficiency of Description or Designation of Land in Contract or Memorandum of Sale Under Statute of Frauds, 23 A.L.R.2d 40 (1952).