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 question of the applicability of the statute depends therefore in many cases on whether the contract has been performed or not. Delivery of a deed by the vendor to his own agent subject to his orders, is, of course, not performance.1 Delivery in escrow is held not to be full performance by the vendor, and the statute of frauds applies.2 Whether a tender of a deed for the realty by the vendor, which tender is refused by the vendee, amounts to full performance in this sense is a question upon which the authorities are in conflict.3 Where such tender is held to constitute full performance a vendee cannot avoid liability for the purchase price if the vendor is ready and willing to deliver his deed in accordance with his oral contract.4 Whether
23Towsley v. Moore, 30 O. S. 184; 27 Am. Rep. 434. In these cases the remedy is on quantum meruit. See Sec. 749-751.
24 See Sec. 669.
1 Sowards v. Moss, 59 Neb. 71; 80 ST. W. 268; reversing 58 Neb. 119; 78 X. W. 373.
2 Swain v. Burnette, 89 Cal. 564; 26 Pac. 1093; Kopp v. Reiter, 146 111 437; 37 Am. St. Rep. 156; 22 L. R. A. 273; 34 N. E. 942; Shultz v. Pinson, 63 Kan. 38; 64 Pac. 963; Ducett v. Wolf, 81 Mich. 311; 45 N. W. 829; Cagger v. Lansing, 43 X. Y. 550; Cooper v. Thomason, 30 Or. 161; 45 Pac. 296; Campbell v. Thomas, 42 Wis. 437; 24 Am. Rep. 427. Under delivery in escrow three questions are involved: (l) is such delivery full performance; (2) if not, can an undelivered deed be a memorandum sufficient to comply with the statute, and (3) if an undelivered deed can comply with the requirements of the statute, does the deed in the specific case contain enough to be a sufficient memorandum. See Sec. 696 et seq.
3 That it is full performance, Scott v. Glenn, 98 Cal. 168; 32 Pac. 983; Stephens v. Harding, 48 Neb. 659; 67 X. W. 746; Hodges v. Green, 28 Vt. 358. That it is not full performance. Graham v. Theis, 47 Ga. 479; Sands v. Thompson, 43 Ind. 18; Kroll v. Match Co., 113 Mich. 196; 71 X. W. 630; Moore v. Powell, 6 Tex. Civ. App. 43; 25 S. W. 472.
4 Washington Glass Co. v. Mos-baugh, 19 Ind. App. 105; 49 X. E. 178; Rowland v. Garman, 1 J. J. Mar. (Ky.) 76; 19 Am. Dec. 54; Barnes v. Wise, 3 T. B. Mon. (Ky.) 167: McGowen v. West. 7 Mo. 569; 38 Am. Dec. 468; Green v. R. R., tender of a deed can amount to full performance or not, there can be no performance without at least a tender. Thus where a deed was executed by the grantor and left with the notary, no tender ever being made, it was held that an oral contract for the sale of realty was not taken out of the statute by these acts.5