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, on the other hand, B, who by the terms of the contract is to do an act which is not within the statute, performs the contract fully on his part, while A, who by the terms of the contract was to perform an act which is one of those named in the statute, has not performed on his part, the contract is within the statute. Thus if A has agreed to convey realty to B for a valuable consideration and B has performed as by paying the purchase money,1 or by rendering the services agreed upon,2 and A has not conveyed the realty agreed upon, the contract is within the statute.
77 X. C. 95; Crutchfield v. Donathon, 49 Tex. 691; 30 Am. Rep. 112. "He is at the wrong end of the contract to do this." Taylor v. Russell, 119 X. C. 30; 25 S. E. 710.
5Shultz v. Pinson, 63 Kan. 38; 64 Pac. 963. (The buildings on the realty sold were wrecked by a tornado and the vendee repudiated the contract.)
1Duff v. Hopkins, 33 Fed. 599; Manning v. Pippen, 95 Ala. 537; 11 So. 56; Forrester v. Flores, 64 Cal. 24; 28 Pac. 107; Percifield v. Black. 132 Ind. 384; 31 N. E. 955; God-dard v. Donaha, 42 Kan. 754; 22 Pac. 708; Nay v. Mograin, 24 Kan. 80; Truski v. Streseveski, 60 Mich. 34; 26 N. W. 823; Peckham v. Balch, 49 Mich. 179; 13 N. W. 506; Townsend v. Fenton, 30 Minn. 528; 16 X. \V. 421; Simmons v. Headlee, 94 Mo. 482; 7 S. W. 20; Baker v. Wiswell, 17 Neb. 52; 22 X. W. Ill;
Nibert v. Baghurst, 47 N. J. Eq. 201; 20 Atl. 252; Cooley v. Lobdell, 153 N. Y. 596; 47 X. E. 783; Armstrong v. Kattenhorn, 11 Ohio 265; Pollard v. Kinner, 6 Ohio 528; Sites v. Keller, 6 Ohio 483; Boozer v. Teague, 27 S. C. 348; 3 S. E. 551; Humbert v. Brisbane, 25 S. C. 506; Wright v. Bearrow, 13 Tex. Civ. App. 146; 35 S. W. 190; Munk v. Weidner, 9 Tex. Civ. App. 491; 29 S. W. 409; Maxfield v. West, 6 Utah 327, 379; 23 Pac. 754; 24 Pac. 98; Miller v. Lorentz, 39 W. Va. 160; 19 S. E. 391; Gallagher v. Gallagher, 31 W. Va. 9; 5 S. E. 297; Jourdain v. Fox, 90 Wis. 99; 62 X. W. 936. This rule is modified by special statute in some states as in Iowa. See Sec. 731.
2 Townsend v. Venderwerken. 9 Mackey (D. C.) 197; Crabill v. Marsh, 38 O. S. 321.
This view is generally taken both in law and equity.3 So where A agrees to mortgage certain realty to B to secure a loan and B makes the loan, A's promise to make the mortgage cannot be enforced if oral.4 Many of the cases which belong under this topic are treated for convenience under part performance.5 If A agrees to perform an act which by the terms of the contract cannot be performed within the year, and B in consideration thereof agrees to perform another act, performance by B still leaves the contract within the statute.6 Thus if A agrees not to sue on a note for two years in consideration of payment by B of part of the interest in advance payment by B, does not take the case out of the statute.7
XL. Effect of Part Performance of Contracts Within the Fourth Section of the Statute.