Birenbaum v. Option Care, Inc

In Birenbaum v. Option Care, Inc., 971 S.W.2d 497, 501 (Tex. App.--Dallas 1997, pet. denied), the prospective seller of securities sued the prospective buyer for breach of contract after the buyer refused to consummate the transaction. The court of appeals held that a document sent by fax from the buyer to the seller was not a sufficient writing to satisfy the statute of frauds. Id. at 501-02. The document contained a stated quantity and price but was not signed. Id. at 501. Although the buyer signed a "post it" note transmitting the fax, the court concluded this signature did not "authenticate the document to which it was attached as the agreement of the parties." Id. at 502. The court rejected the seller's contention that the statute of frauds did not require language exhibiting a "present intention to be bound" and that there was no need "for the writing to contain verbs of commitment." Id. The court stated that the writing required to be signed for purposes of the statute of frauds is not just a "piece of paper" but a writing sufficient to indicate a contract has been made. Id. Although a "thumbprint would authenticate the writing as coming from its author," the writing still fails to satisfy the statute of frauds if it is not "sufficient to indicate that a contract has been made." Id.