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.
If the contract requires A to do an act which is one of those named in this section of the statute of frauds, and requires B to do an act which is not one of those named in this section, complete performance by one party may have a very different effect upon the contract from performance by the other. If A, the party who is required by the terms of the contract to perform an act which is one of those included within this section of the statute, has fully performed the terms of the contract on his part to be performed, leaving B liable for an act which is not one of those named in this section, A's performance prevents the statute from applying to such contracts, since B's promise may be proved by oral evidence and A's performance need be shown only as consideration for B's promise, no attempt to enforce A's promise being necessary.1 A may sue B at law on the contract itself, without either suing for a reasonable compensation independent of the contract, or being compelled, to resort to equity.2 Thus if A has agreed orally to convey realty to B in consideration of some recompense in value not within the statute and A has performed the terms of the contract on his part to be performed by executing and delivering a deed for such realty to B, A can enforce the contract against B.3 If A agrees to convey realty to B and performs the contract, a further oral contract between A and B with reference to the payment of the purchase price is not affected by this clause of the statute.4 Thus an oral
434; Harris v. Harper, 48 Kan. 418; 29 Pac. 697. So with the surrender of a lease. Tobener v. Miller, 68 Mo. App. 569.
4Flickinger v. Shaw, 87 Cal. 126; 22 Am. St. Rep. 234; 11 L. R. A. 134; 25 Pac. 268; McLure v. Koen, 25 Colo. 284; 53 Pac. 1058; Bal-dock v. Atwood, 21 Or. 73; 26 Pac. 1058.
5Maupin v. Ry., 171 Mo. 187; 71 S W. 334. For a similar case see Michigan Central Ry. v. Ry., -Mich. -; 93 N. W. 882.
6 Bacon v. Fay, 63 N. J. Eq. 411; 51 Atl. 797.
7Larsen v. Johnson, 78 Wis. 300; 23 Am. St. Rep. 404; 47 X. W. 615.
8 Kling v. Tunstall, 124 Ala. 268; 27 So. 420; Webster v. Le Compte, 74 Md. 249; 22 Atl. 232: Milner v. Harris, 1 Neb. Un. 584; 95 N. W. 682.
9Doherty v. Doe, 18 Colo. 456; 33 Pac. 165.
10 St. Louis Hay, etc., Co. v. United States, 191 U. S. 159; Stan-att v. Mullen, 148 Mass. 570; 2 L. R. A. 697.
1McConnell v. Brayner, 63 Mo. 461; Marks v. Davis, 72 Mo. App. 557; Flower v. Barnekoff, 20 Or. 132; 11 L. R. A. 149; 25 Pac. 370; Warwick, etc., Co. v. Allen (R. I.), 35 Atl. 579.
2 Marks v. Davis, 72 Mo. App. 557.
3 Wood v. Perkins, 57 Fed. 258; Merrell v. Witherby, 120 Ala. 418; 74 Am. St. Rep. 39; 23 So. 994; 26 So. 974; Dargin v. Hewlitt, 115 Ala. 510; 22 So. 128; Butler v. Lee, 11 Ala. 885; 46 Am. Dec. 230; Devalin-ger v. Maxwell, - Del. -; 54 Atl. 684; Stringer v. Stringer, 93 Ga. 320; 20 S. E. 242; Ballard v. Camp-lin, 161 Ind. 16; 67 N. E. 505 [reversing (Ind. App.) 64 N. E. 931]; Lingeman v. Shirk, 15 Ind. App. 432; 43 N. E. 33: Bird v. Jacobus, 113 Ia. 194; 84 N. W. 1062; McKinley v. McKinley (Ky.), 66 S. W. 831: O'Grady v.
O'Grady, 162 Mass. 290; 38 N. E.
196; Parker v. Tainter. 123 Mass. 185; Gardner v. Gardner. 106 Mich. 18; 63 X. W. 988; Hagelin v. Wacks. 61 Minn. 214; 63 N. W. 624; Smock v. Smock, 37 Mo. App. 56; Skow v. Locks (Neb.). 91 X. W. 204; Griffith v. Thompson. 50 Neb. 424; 69 N. W. 946; Bigler v. Baker, 40 Neb. 325; 24 L. R. A. 255; 58 N. W. 1026; Smith v. Arthur, 110 N. C. 400: 15 S. E. 197; Maguire v. Heraty. 163 Pa. St. 381; 43 Am. St. Rep. 800; 30 Atl. 151; Wilkins v. Totty (Tenn. Ch. App.), 64 S. W. 338; Showalter v. Macdon-nell, 83 Tex. 158; 18 S. W. 491; Johnson v. Clarkson (Tex. Civ, App.), 29 S. W. 178; Davis v. Farr, 26 Vt. 596.
4 Turpie v. Lowe. 114 Ind. 37; 15 N. E. 834; Cummings v. Arnold,
3 Met. (Mass.) 486; 37 Am. Dec. 155: Brown v. Brown. 47 Mo. 130;
4 Am. Rep. 320; Negley v. Jeffors, 28 O. S. 90; Whiffen v. Hollister, 12 agreement by vendee to pay a debt of vendor's5 as a lien for the purchase money due from vendor to his grantor,6 or a mortgage given by vendor to secure his debt,7 as part of the purchase price of such realty, is not within this clause of the statute.8 So an oral contract by vendee to discharge certain assessments claimed to be liens on the realty conveyed is not within this clause.9 So a contract forfeiting an advance deposit of the purchase price if the written contract for the purchase of realty as extended by the oral contract in question is not complied with, is not within the statute.10 A contract by vendor to refund a part of the purchase price on tendering a deed of a lot less in area than that contracted for11 is not within the statute. While an oral contract whereby A agrees with B that A shall buy land from X and resell it to B is within the statute, yet if A causes the deed to be made out to B and otherwise performs his part of the contract, B must compensate him in accordance with the contract on his part to be performed.12 So where X offered two tracts for sale, refusing to sell them separately, and A, who wished one of them, agreed to pay B $100 if B would buy the other tract at $900, which X asked for it, so that A could buy his tract at the same time, A's promise was not within the statute.13 So if A by an oral contract agrees to sell realty to B and C, and subsequently at B's request, A conveys to C alone, B is liable in an action on the contract for the purchase money.1* So an oral sale of articles which are treated by the law as a part of the realty, such as rock,15 growing timber,16 or hay,17 is not affected by the statute where the vendor has performed by permitting vendee to sever the articles sold from the realty and to appropriate them. Thus an oral contract for the assignment of a lease,18 or for an easement, such as a party-wall,19, or a right of way,20 are not within this clause of the statute when completely performed by the party who is to convey the interest in realty. If A orally promises to pay B's debt to C, performance by A withdraws the contract from the operation of the statute.21 Whether a contract which by its terms is not to be performed within a year from the date of the making thereof is taken out of the operation of the statute by full performance on the side of the party whose part was not to be complete within the year, is a question upon which the decisions are in conflict. Some courts hold that in such cases the statute does not apply,22 others, that it does.23 In many states it is held that this clause of the statute does not apply to contracts to be performed on one side within the year and on the other not within the year.24
S. D. 68; 80 N. W. 156; Johnson v. Clarkson (Tex. Civ. App.), 30 S. W. 71; 29 S. W. 178.
5 McLaren v. Hutchinson, 22 Cal. 187; 83 Am. Dec. 59. So with a promise to pay a debt of vendor's husband. Brown v. Brown, 47 Mo. 130; 4 Am. Rep. 320.
6 Pickett v. Jackson (Tex. Civ.. App.), 42 S. W. 568.
7 Lowe v. Hamilton, 132 Ind. 406; 31 N. E. 1117; Neiswanger v. Mc-Clellan, 45 Kan. 599; 26 Pac. 18; Bennett v. Knowles, 111 Mich. 226; 69 N. W. 491; Negley v. Jeffers, 28 O. S. 90. So where such mortgage is to secure vendor's debt to his grantor for the purchase price of the realty sold to vendee. Bedford Belt Ry. v. Winstandley, 16 Ind. App. 143; 44 N. E. 556.
8 Nor is it within the clause concerning contracts to answer for the debt of another. See Sec. 623.
9Heald v. Ross (N. J. Eq.), 47 Atl. 575.
10Hurlburt v. Fitzpatrick, 176 Mass. 287; 57 N. E. 464.
11 Haviland v. Sammis, 62 Conn. 44; 36 Am. St. Rep. 330; 25 Atl. 394.
12 Baker v. Wainwright, 36 Md. 336; 11 Am. Rep. 495. (A purchased at sheriff's sale in accordance with B's instructions, and had the deed made out to B. B refused to pay the purchase price; and the property was resold in accordance with the terms of the sale and the loss charged to A. A was allowed to recover this loss from B.).
13 Ambrose v. Ambrose, 94 Ga. 655; 19 S. E. 980; citing Little v. McCarter, 89 N. C. 233.
14 Randall v. Turner, 17 0. S. 262.
15 Rich v. Donovan, 81 Mo. App. 184.
16 Oconto Co. v. Lundquist, 119 Mich. 264; 77 N. W. 950; Wilson v. Fuller, 58 Minn. 149; 59 N. W. 988.
17Mowrey v. Davis, 12 Ind. App. 681; 40 N. E. 1108.
18 Cleveland, etc., Ry. v. Wood, 189 111. 352; 59 N. E. 619.
19 Rindge v. Baker, 57 N; Y. 209; 15 Am. Rep. 475; Hall v. Geyer, 14 Ohio C. C. 229; 7 Ohio C. D. 436; Horr v. Hollis, 20 Wash. 424; 55 Pac. 565; Pireaux v. Simon, 79 Wis. 392; 48 N. W. 674. In Walker v. Shackeford, 49 Ark. 503; 4 Am. St.
Rep. 61; 5 S. W. 887; it seems to be regarded as an open question (though in that case, immaterial) whether the contract itself could be enforced or whether the party who had erected the wall could recover on a quantum meruit and use the oral contract to show the amount of damages.
20 Scott v. Ry., 94 Fed. 340; 36 C. C. A. 282; Texas, etc., Ry. v. Scott, 77 Fed. 726; 37 L. R. A. 94; 23 C. C. A. 424.
21 Hasterlick v. Applebaum, 64 111. App. 433.
22 Ives v. Gilbert, 1 Root (Conn.) 89; 1 Am. Dec. 35; Louman v. Sheets, 124 Ind. 416; 7 L. R. A. 784; 24 N. E. 351; Taylor v. Turnpike Co. (Ky.) , 34 S. W. 226; Winters v. Cherry, 78 Mo. 344.