In contracts for the sale of goods which are within the statute, its express terms provide that certain acts of part performance operate as a satisfaction of its requirements, so that there has been no occasion for any equitable addition to the terms of the section of the statute relating to such transactions.66 It has not been suggested that part performance validates a promise to answer for the debt of another; and though it has been often urged that after marriage has taken place, an oral promise previously made in consideration thereof should be enforced, the contrary has been uniformly held,67 unless the count for and pay over the excess.. That part of the contract is separable from the rest of the contract, and the rest of the contract having been performed, there is no reason why this part of it should not be enforced. And to that effect see the cases which we cite. Page v. Monks, 5 Gray, 492; Trowbridge v. Wetherbee, 11 Allen, 361; Graffam v. Pierce, 143 Mass. 386, 9 N. E. 819." Cf. Dyer v. Graves, 37 Vt 369.
64 See supra, Sec. 631.
65 Pierce v. Clarke, 71 Minn. 114, 73 N. W. 522.
65a See supra, Sec. 603.
66 Sarkkiau v. Teele, 201 Mass. 596, 607, 608, 88 N. E. 333.
67 Montacute v. Maxwell, 1 P. Wm. 618; Caton v. Catou, L, R. 2 H. L. 127; In re Holland, 11901] 2 Ch. 145; M'As kee v. M'Cay, 2 lr. R. Eq. 447; Lloyd v. Fulton, 91 U. S. 479, 23 L. Ed. 363; Andrews v. Jones, 10 Ala. 400, 420; Peek v. Peek, 77 Cal. 106, 19 Pac. 227, 1 L. R. A. 186, 11 Am. St. Rep. 244; Keady v. White, 168 111. 76, 48 N. E.
314; Fleoner v. Flenner, 29 Ind. 564; Eraser v. Andrews, 134 Ia. 621, 112 N. W. 92, 11 L. R. A. (N. 8.) 593, 13 Ann. Cas. 556; Green v. Green, 34 Kane. 740, 10 Pac 166, 55 Am. Rep. 266; Petty v. Petty, 4 B. Mon. 215, 39 Am. Dec 501; Albert v. Winn, 6 Md. 66; Deshon v. Wood, 148 Mass. 132, 19 N. E. 1, 1 L. R. A. 618; Welch v. Whelpley, 62 Mich. 16, 28 N. W. 744, 4 Am. St. Rep. 810; Cole v. Cole, 99 Miss. 335, 64 So. 953, 34 L. R. A. (N. S.) 147, Ann. Cas. 1913 E. 332; Wat-kins v. Watkins, 82 N. J. Eq. 483, 89 Atl. 253; Hunt v. Hunt, 171 N. Y. 396, 64 N. E. 159,59 L. R. A. 306; McCartney v. Fitsworth, 142 N. Y. App. D. 292,126 N. Y. S. 905; Henry v. Henry, 27 Ohio St. 121; Adams v. Adams, 17 Oreg. 247, 20 Pac 633; Iiard v. Iiard, Bail. Eq. 228; Hackney v. Hackney, 8 Humph. 452; Harmon v. Hounihan, 85 Va. 429,12 S. E. 157; Rowell v. Barber, 142 Wis. 304, 125 N. W. 937, 27 L. R. A. (N. 8.) 1140; Crow v. Campbell, L. R. 10 Vict. Eq. 186.
promisor fraudulently intended from the outset to induce the marriage without performing his promise. In such a case specific performance has generally been allowed.68 Nor does it help the plaintiff's case that relying upon an agreement in consideration of marriage he changed his position, as by giving up his employment.69 An agreement not performable within a year also is not validated by part performance,70 though performance of one entire Bide of such a contract or of a divisible portion thereof is often held to make the statute inapplicable.71
Though the doctrine of part performance is not applicable to other provisions of the statute than that relating to real estate, whether because quasi-contractual remedies afford sufficient relief for such hardships as are likely to arise under other clauses, or because courts of equity have built up the doctrine in regard to part performance, and it is chiefly the clause of the statute relating to land which comes before such courts, it seems that the doctrine will none the less be applied to an oral contract for the Bale of land because the contract was not performable within a year.72
68Cookee v. Matsoall, 2 Vera. 200; Dundas v. Dutens, 1 Ves. Jr. 196, 190; Wood v. Midgley, 5 D. M. & G. 41; Caton v. Caton, 1 Ch. App. 137; Peek v. Peek, 77 Cal. 106, 19 Pac. 227, 1 L. R. A. 185, 11 Am. St Rep. 244; Green v. Green, 34 Kans. 740, 10 Pac. 156, 55 Am. Rep. 256; Petty v. Petty, 4 B. Mon. 215, 30 Am. Deo. 501. But see contra, Hackney v. Hackney, 8 Humph. 452.
69 Dienst v. Dienst, 175 Mich. 724, 141 N. W. 501.
70 Britain v. Rossiter, 11 Q. B. D. 123; Conoley v. Harrell, 182 Ala. 243, 02 So. 511; Oak Leaf Mill Co.v. Cooper, 103 Ark. 79, 146 S. W. 130; Long v. Long, 162 Cal. 427, 122 Pac. 1077; Butler p. Shehan, 61 111. App. 561; Smith v. Chase Ac. Piano Mfg. Co., 175 Mich. 371, 141 N. W. 563, 186
Mich. 313, 151 N. W. 1025; Union Savings Ac. Co. v. Krumm, 88 Wash. 20, 152 Pac. 681. Cf. Diamond v. Jac-quith, 14 Aril. 119, 125 Pac. 712, L. R. A. 1016 D. 880; Bagwell v. Milam, 0 Ga. App. 315, 71 S. E. 684.
71 See supra, Sec. 504.
72 Fall v. Haaelrigg, 45 Ind. 576, 15 Am. Rep. 278. See also Lavoie v. Dube, 229 Mass. 87, US N. E. 179. The former case was made the basis of the broad statement in Baynn v. Chastain, 68 Ind. 376, 380, that the prohibition of the statute against contracts not performable within a year "is not applicable to agreements in relation to real estate." A similar statement is made in Taggard v. Roosevelt, 2 E. D. Smith (N. Y.), 100, but such broad statements are exceptional and do not represent the law.
Sec. 534. Quasi-contractual recovery for part performance of a contract within the statute. Whether an agreement obnoxious to the Statute of Frauds is void or merely unenforceable, one who has partly performed the agreement and who is not in default in continuing performance should be compensated for any benefit which he has furnished his co-contractor. It has been suggested by a learned writer 73 that such relief ought not to be granted if the plaintiff knew that the agreement was unenforceable, since it is said he has thereby voluntarily assumed the risk of receiving nothing in return for his performance. This suggestion, however, as the writer admits, is not supported by the decisions, and rightly, for it fails to recognize the important distinction between (1) agreeing to buy a chance of performance and (2) agreeing to buy the performance itself, knowing that there is a chance that the proposed exchange will not be carried out. One who agrees to pay a price for an insurance policy or for the forbearance of a doubtful claim, is proposing to buy a chance. If he gets nothing from the insurance company, or if in fact there was no enforceable claim, he has none the less got what he bargained for. Even one who under a mistake pays a claim which he supposes to be valid but which is invalid, at least achieves the result he desires - freedom from liability; though he might have achieved that result without payment. But when one who has given his performance in return for a promise of a specific exchange does not receive that exchange, there is failure of consideration on the one side and unjust enrichment on the other; and his knowledge beforehand that he may not receive that exchange does not alter the case. It would be as unfortunate in law as in morals if one who had paid a thousand dollars for an absolute promise of a piece of land believing that the vendor's word was as good as his bond, though knowing the oral agreement was legally invalid, should be without remedy if the vendor or his representatives failed to perform. In fact, without regard to the plaintiff's knowledge, or lack of knowledge, of the invalidity of the oral contract, he is allowed to recover the fair value of what he has given when the defendant fails or refuses to perform on his part. It is immaterial whether the plaintiff has parted with money,74 property,75 or services.76 The value of the use of premises may also be recovered from one who has occupied them under an oral contract to purchase,77 or an oral lease within the statute.78 It has been held in Massachusetts that if the defendant has refused to perform, but has not pleaded the Statute of Frauds as a justification for his refusal, recovery cannot be had for the consideration furnished.79 This is surely a most undesirable result. Apparently it compels a plaintiff first, to sue upon the contract, and then if the Statute of Frauds is pleaded to discontinue that action and begin another. It should be enough and it seems has been generally treated without discussion as enough that the defendant has refused to perform, without other defence than that of the statute, and that he has this defence if he chooses to assert it.80 If the defendant can show that his refusal is based on some other valid ground than that of the statute, the plaintiff's right will depend on whether relief is to be given to one who is himself in default.81