Signed, Sealed and Delivered as Deposit in Favor of Plaintiffs. The same date the Contract of Sale was executed, plaintiffs deposited their earnest money of $2,500 with the Title Company and the contract provided: "It is hereby understood and agreed that the amount of $2,500 is to be held in trust by the W.J. Pemberton Agency as agent for the purchasers until the completion of the sale of said property; that the same shall be by said agent not only held subject to this agreement, but also in connection with all sums expended for improvements, repairs, taxes, and similar outlays connected with said property." Prior to the execution of the Contract of Sale and the making of the earnest money deposit plaintiffs and defendants were each furnished a printed report entitled "Sale Ready to Close," showing a market value of $38,500 as fixed by an independent appraiser. Pursuant to the Contract of Sale, which provided that all "expenses incidental to the consummation of the sale" should be borne by the seller, defendants expended $6,380.40 for the purpose of bringing the subject property up to a condition to satisfy the requirements of FHA and Veterans Administration. Following that improvement defendants took possession of the property and have been in possession since on the 3d day of July, 1960. Plaintiffs have filed a three count complaint. In count I of that complaint plaintiffs seek specific performance of the contract of sale and demand that defendants be directed to perform their part of said contract, specifically the conveyance of the property, and ask that plaintiffs be reimbursed in the amount of $2,500, the earnest money deposit, for what they claim is a substantial breach of said contract. In count II of the complaint plaintiffs seek to recover damages for the alleged breach of contract in the amount of $3,380.40 plus interest. The theory upon which they predicate liability is that in expending such sum defendants became fiduciaries for plaintiffs and that they breached the trust when they allegedly breached the contract by failing and refusing to convey the subject property to plaintiffs. In count III of the complaint plaintiffs allege that after the execution of the contract of sale a confidential relationship was created between the parties and that defendants breached their trust and duty as fiduciaries by appropriating to their own use and benefit a substantial portion of the $2,500 deposit without plaintiffs' consent and contrary to the terms and provisions of the contract, and demand $2,500 plus interest as compensation for defendants' breach of their trust. For this breach of trust and duty plaintiffs demand judgment in the amount of $2,500 plus interest. The first question that confronts the court is whether the case falls within the category of the class of cases governed by § 3(3) of our statute of frauds or whether the rule as to *289 breach of contract cases applies. The rule as to breach of contract cases is set out in 32 Am.Jur., Landlord and Tenant, § 458, p. 907: "Under the so-called Statute of Frauds, a contract for the sale or transfer of real estate not in writing and not to be performed within one year from the making thereof must be in writing, subscribed by the party to be charged, or his agent, if written authority of the agent is necessary; * * * But the owner or the agent of the owner, either directly or through the medium of an intermediary, has authority to bind the owner by a contract of sale or purchase of land, even though made by him without any power of attorney to do so, if he has no other means of communication with the owner than such as is afforded by the owner's actual possession of the land." In 2 Corbin on Contracts, § 318, p. 334 it is said: "If the oral promise concerns anything except land, it is not within the statute. The statute does not apply to the sale or lease of personal property, if the contract is not performed within a year, and so neither does it apply to the sale or lease of land if the contract is to be performed within a year." In 66 C.J.S. Statute of Frauds § 16 a this statement is found: "An oral agreement is not within the statute of frauds where the agreement relates to personal property or to an interest in real estate to which no writing is referable. If the contract concerns anything but land it is not within the statute. In general the contract is not within the statute even though the contract concerns land." Our own cases indicate that whether the statute of frauds is applicable or not, an oral contract concerning real estate is not enforceable if it is not performed within one year, Tit. 38, § 22, Code 1940. But as to whether the statute applies to contracts concerning personal property in some cases courts have disagreed as to whether oral contracts of sale or transfer are to be governed by the statute. The great weight of authority holds that such contracts are not within the statute of frauds and enforceable in equity, or at least that such contracts are not within the statute of frauds unless the contract is not to be performed within a year of the date of the execution of the contract. See 33 Am. Jur. "Limitations of Actions," § 305, p. 748; Anno: "Statute of Frauds; Sales," 81 A.L.R. 762; Anno: "Statute of Frauds, Sale," 161 A.L.R. 1414, and later cases cited in each, particularly 3 A.L.R.2d 522; Anno: "Statute of Frauds, Sales," 159 A.L.R. 1518. If the doctrine of "estoppel by deed" is applicable in the instant case, then plaintiffs' right to recover is controlled by the Statute of Frauds, and it follows that the Statute of Frauds is inapplicable. See Moore v. Goldsmith, 244 Ala. 504, 14 So.2d 519, 148 A.L.R. 419; 3 Corbin on Contracts, § 536, p. 65; Anno: "Sales," 53 A.L.R.2d 1431; Anno: "Strict or Implied Statute of Frauds," 27 A.L.R.2d 798; 41 Am.Jur., Pleading, § 120, p. 652; 66 C.J.S. Statute of Frauds § 16 a, p. 711; 3 A.L.R.2d 518; 33 Am.Jur., Records and Recording Acts, § 12, p. 715; Tit. 38, § 21, Code 1940; Tit. 47, § 94, Code 1940; Anno: "Statute of Frauds—Contracts," 81 A.L.R. 753; Anno: "Statute of Frauds, Sales," 26 A.L.R.2d 1259; 20 A.L.R.2d 1057. In Moore v. Goldsmith, supra, this court said: "In actions for specific performance of contracts to sell land, or to enforce the right to specific performance of such contracts, the oral agreement in question, being one within the provisions of the statute of frauds, requires *290 performance within one year from the making thereof in order that it may be enforced or to become operative. This is a rule that is universally accepted, and the statute may not be avoided by invoking the doctrine of equitable estoppel or estoppel by deed." In 3 Corbin on Contracts, § 538, p. 74 it is said: "But even though the statute makes void a conveyance on a parol promise to convey, it does not make void a promise to convey and does not prohibit proof of such an oral promise in any form of action based on the claim or breach of it. The Statute of Frauds has nothing to do with equitable relief, and the doctrine of `estoppel by deed' as it relates to equitable relief is as valid in a Statute of Frauds situation as in any other; and the Statute of Frauds has no application to the enforcement of oral promises to convey or to the claim of the promissee's right to specific performance thereof." The rule is stated in Restatement, Contracts, § 178(2), p. 582: "Where property is interposed as a consideration for a promise, the Statute of Frauds requires a signed writing of the party to be charged. This does not apply when the Statute requires a memorandum signed by the party to be charged. The promise to make a memorandum sufficient for a particular purpose is then made by the writing." Where the memorandum is sought to be established by parol, as here, the statute is said not to apply. Where the instrument itself is a sufficient memorandum of the contract as required by the statute of frauds, the memorandum in writing must come before the contract and be contained in the instrument itself. See 3 Corbin on Contracts, § 533, p. 64; 3 Williston on Contracts, § 495, p. 674; 20 A.L.R.2d 1070. See also Anno: "Sales," 81 A.L.R. 762. We conclude that the court erred in overruling plaintiffs' plea in abatement to the alleged oral contract of sale between plaintiffs and defendants because, (1) the contract was not to be performed within a year and was not, therefore, within the purview of Tit. 22, § 24, Code 1940; and (2) even if