This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The section of the statute under discussion provides that "no action shall be brought whereby to charge" parties to the classes of contracts therein specified. From this wording it is plain that the legislature was referring only to contracts which were in part at least executory and to enforce which a right of action was necessary. Accordingly if the contract is completely performed on both sides it is not within this section of the statute either in letter or in spirit.1 Thus an oral contract for the sale,2 or lease3 of realty; or an oral contract for an easement, such as the right to construct a ditch over the land of another,4 or an agreement to convey a right of way to a railway,5 or a contract to partition realty,6 cannot after full performance on both sides be avoided because within the statute. Thus where A agreed orally to convey certain realty to B in consideration of B's supporting A for life, such contract though verbal cannot be avoided where A has made such conveyance and B has furnished such support.7 So an oral contract to pay the debt of another cannot be avoided after performance.8 So a subsequent oral modification of a written contract of a class included within the statute cannot be avoided when fully performed on both sides.9 After performance one party cannot ignore the contract and sue to recover a reasonable compensation for what he has parted with thereunder.10
6 Raymond v. Colton, 104 Fed. 219; 43 C. C. A. 501. (Merely presenting his resignation and statins' that it was in fulfillment of the agreement was not sufficient.)
7 Smith v. Hudson, 6 B. & S. 431; 118 Eng. C. L. 429.
8 Edgerton v. Hodge, 41 Vt. 676.
1Bibb v. Allen, 149 U. S. 481; Walsh v. Calcough, 56 Fed. 778; 6 C. C. A. 114; Merrell v. Witherby, 120 Ala. 418; 74 Am. St. Rep. 39; 23 So. 994; 26 So. 974; Bates v. Babeock, 95 Cal. 479; 29 Am. St. Rep. 133; 16 L. R. A. 745; 30 Pac. 605; Coffin v. Bradbury, 3 Ida. 770; 95 Am. St. Rep. 37; 35 Pac. 715; Anderson School Township v. Mil-roy Lodge, 130 Ind. 108; 30 Am. St. Rep. 206; 29 X. E. 411; Nicholson V. Schmucker, 81 Md. 459; 32 Atl.
182; Wetherbee v. Potter, 99 Mass. 354; Stone v. Dennison. 13 Pick. (Mass.) 1; 23 Am. Dec. 654; Mc-Cue v. Smith, 9 Minn. 252; 86 Am. Dec. 100; Brown v. Trust Co., 117 X. Y. 266; 22 N. E. 952; Remington v. Palmer, 62 N. Y. 31; Gregg v. Willis, 71 Vt. 313; 45 Atl. 229; Howe v. Chesley, 56 Vt. 731; Pi-reaux v. Simon, 79 Wis. 392; 48 X. W. 674; Larsen v. Johnson, 78 Wis. 300; 23 Am. St. Rep. 404; 47 X. W. 615.
2 Grippen v. Benham, 5 Wash. 589; 32 Pac. 555; Larsen v. Johnson, 78 Wis. 300; 23 Am. St. Rep. 404; 47 N. W. 615. Such as a release of dower and homestead rights. Gerber v. Upton, 123 Mich. 605; 82 X. W. 363.
3 Stautz v. Protzman, 84 111. App.