Estate of Peterson

LANSING, Judge

(dissenting).

The majority holds that the documents signed by Diane Swanberg and Charles Peterson are not enforceable because they do not state in writing the consideration for the contract. For three separate reasons, I believe that this holding is not supported by the applicable law, and I respectfully dissent.

First, Minn.Stat. § 513.075, governing financial and property agreements between cohabiting parties, does not require that the consideration be stated in writing. See Minn.Stat. § 513.075 (requiring only that cohabitation agreements be in writing, signed by parties, and enforced after termination of relationship). Imposing an additional requirement, not listed in the statute, is inconsistent with principles of statutory construction and with the apparent purpose of the statute. See Wallace v. Commissioner of *493Taxation, 289 Minn. 220, 230, 184 N.W.2d 588, 594 (1971) (courts “cannot supply that which the legislature purposely omits or inadvertently overlooks”); In re Eriksen, 337 N.W.2d 671, 674 (Minn.1983) (Minn.Stat. § 513.075 applies “only where the sole consideration for a contract between cohabiting parties is their ‘contemplation of sexual relations * * * out of wedlock’ ”).

The cases cited by the majority in support of imposing a written consideration requirement were not decided under the cohabitation provision of section 513.075, and both involve contracts for the sale of lands. See Greer v. Kooiker, 312 Minn. 499, 504-07, 253 N.W.2d 133, 138-39 (1977) (contract for sale of land under Minn.Stat. § 513.05); Taylor v. Allen, 40 Minn. 433, 434, 42 N.W. 292, 292 (1889) (contract for sale of land under statute of frauds). Contracts for the sale of lands are governed by a parallel provision, Minn. Stat. § 513.05, which specifically requires that consideration be stated in writing. Minn.Stat. § 513.05 (1996) (contract for sale of land void unless, among other requirements, consideration stated in writing). Consequently, these cases do not provide precedent for the issues raised in this case.

Second, implying a stringent written consideration requirement into the contract between Swanberg and Peterson runs counter to well established common law rules of contract interpretation, some of which apply even when the transactions involve the sale of land. See Greer, 312 Minn, at 505, 253 N.W.2d at 138-39 (‘part performance may, in some instances, place the transaction wholly outside the statute’) (quoting Doyle v. Wohlrabe, 243 Minn. 107, 110, 66 N.W.2d 757, 761 (1954)); Donnay v. Boulware, 275 Minn. 37, 44, 144 N.W.2d 711, 716 (1966) (where writing is ambiguous, court may look to extrinsic evidence “and construction then becomes a question of fact unless such evidence is conclusive”); see also Hartung v. Billmeier, 243 Minn. 148, 151, 66 N.W.2d 784, 788 (1954) (indefiniteness should not be invoked to invalidate a writing that reasonably expresses intent of parties).

Furthermore, a written consideration requirement undermines the general principle that when a contract does not state the consideration on its face, the party relying on the contract may prove it through extrinsic evidence. See Restatement (Second) of Contracts, § 218 cmt. d (1981) (because written agreement that fails to state consideration is not fully integrated, parol evidence rule does not apply and “evidence is admissible to show that there was consideration and what it was”); John D. Calamari and Joseph M. Perillo, Contracts, § 4-24, at 175 (2nd ed.1977) (extrinsic evidence admissible to show consideration exists where no consideration is stated on one or both sides of written contract because a “writing which does not on its face appear to be supported by consideration is not a total integration.”). See also Bartl v. Kenyon, 549 N.W.2d 381, 383 (Minn.App.) (“[wjhere no consideration is apparent on the face of the agreement, the party relying on it must prove consideration”), overruled on other grounds, 552 N.W.2d 730, 730 (Minn.1996).

Third, Minnesota courts have long recognized that a fully performed contract is valid, even if there is no consideration for it. In re Alms’ Estate, 153 Minn. 256, 259, 190 N.W. 253, 254 (1922). See also City of Marshall v. Kalman, 153 Minn. 320, 326, 190 N.W. 597, 600 (1922) (“the absolute and executed part of a contract is a sufficient consideration to support all the provisions of the contract.”). Swanberg and Peterson lived together for over eight years. In apparent reliance on their agreement, Swanberg entered into the cohabiting relationship and forfeited spousal maintenance from her previous marriage. The evidence demonstrates a long-lasting domestic relationship that included Swanberg’s considerable sacrifice in earing for Peterson during a lengthy and debilitating final illness. It is undisputed that the agreement was executed. Recognizing the validity of an executed contract goes to the very essence of consideration, which “means, not so much that one party is benefited, as that the other suffers detriment.” Johnson v. Kruse, 205 Minn. 237, 241, 285 N.W. 715, 717 (1939), overruled in part on other grounds, Bennett v. Johnson, 230 Minn. 404, 411, 42 N.W.2d 44, 49 (1950). In Welsh v. Barnes-Duluth Shipbuilding Co., the Minnesota Supreme Court emphasized the significance of exeeut-*494ed contracts whether or not consideration had been provided:

While it is true that a consideration is necessary to the validity of an executory contract, the rule has no application to executed contracts, for the reason that performance, either partial or in full, supplies sufficient consideration to support all its provisions.

221 Minn. 37, 44, 21 N.W.2d 43, 47 (1945).

The basic purpose of statute-of-frauds requirements is only to provide reasonable safeguards to insure honest dealing, not “to make a fetish of requiring a perfect written contract.” Greer, 312 Minn, at 505, 253 N.W.2d at 138 (quoting Doyle, 243 Minn, at 110, 66 N.W.2d at 761). Imposing a written consideration requirement is at variance with the applicable statute, common law contract principles, and the executed status of the contract. For these reasons, I cannot agree with the majority’s holding.