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.
In equity it is settled that certain acts in performance of an oral contract which without such acts would be within the statute of frauds, will withdraw such contract from the operation of the statute and leave even the executory part thereof enforceable, though oral.1 In some jurisdictions, however, the doctrine of part performance is not recognized.2 This doctrine is known as the doctrine of part performance. The name, while possibly as convenient as any is inexact and liable to mislead. It is by no means every act of part performance which amounts to a technical part performance. Furthermore, the name "part performance" is not infrequently applied to acts which constitute full performance on one side.3 The very existence of this doctrine, while settled by precedent beyond controversy, would probably be challenged if the question were now open. It is often characterized as a judicial repeal of the statute. While the courts recognize it as applicable in cases where it is established by precedent, they are unwilling in most jurisdictions to extend it further. Part performance, when operative, withdraws the entire contract from the statute of frauds and makes it enforecable. It must therefore be distinguished from the doctrine, recognized in some jurisdictions that if a contract has been partly performed on one side, the rights of the parties as to what has been performed are fixed by the contract, though such acts may not amount to a technical part performance to withdraw the contract from the operation of the statute.4 The doctrine of part performance is only a special application of a wider doctrine of equity, namely, that its power of granting relief against fraud is not limited by the statute of frauds. Thus while an oral contract in consideration of marriage is ordinarily uneforceable, both at law and in equity, yet if at the time of making such contract the promisor does not intend performance this is such fraud as calls for the interposition of a court of equity without interference from the statute of frauds.5 Some authorities have gone so far as to give relief for breach of such contract, where the marriage would not have been entered into but for such promise, even if it is not shown that intention not to perform existed when the contract was made, on the theory that such breach works a constructive fraud.6 Part performance, as such, does not, however, have any place in contracts in consideration of marriage.
3 Townsend v. Fenton, 32 Minn. 482; 21 N. W. 726; Brown v. Drew, 67 N. H. 569; 42 Atl. 177.
4 Brown v. Drew, 67 N. H. 569; 42 Atl. 177.
5 See Sec. 717 et seq.
6Reinheimer v. Carter, 31 O. S. 579.
7 Reinheimer v. Carter, 31 0. S. 579.
1 Riggles v. Ermey, 154 U. S. 244; St Louis, etc., By. v. Graham, 55 Ark. 294; 18 S. W. 56; Calanchini v. Branstetter, 84 Cal. 249; 24 Pac. 149; Grant v. Grant. 63 Conn. 530; 38 Am. St. Rep. 379; 29 Atl. 15; Chapman v. Allen, Kirby (Conn.) 399; 1 Am. Dec. 24; Collins v. 69
Moore, 115 Ga. 327; 41 S. E. 609; Deeds v. Stephens, - Ida. -; 69 Pac. 534; Swazey v. Moore, 22 111. 63; 74 Am. Dec. 134; Bogle v. Jar-vis, 58 Kan. 76; 48 Pac. 558; Pike v. Pike, 121 Mich. 170; 80 Am. St. Rep. 488; 80 N. W. 5; Delavan v. Wright, 110 Mich. 143; 67 N. W. 1110; Borden v. Curtis, 48 N. J. Eq. 120; 21 Atl. 472; 46 N. J. Eq. 468; 19 Atl. 127; Johnson v. Hub-bell, 10 N. J. Eq. (2 Stockt. Ch.) 332; 66 Am. Dec. 773; Ryan v. Dox, 34 N. Y. 307; 90 Am. Dec. 696; Butler v. Thompson, 45 W. Va. 660; 72 Am. St. Rep. 838; 31 S. E. 960; McWhinne v. Martin, 77 Wis. 182; 46 N. W. 118.
2 Washington v. Soria, 73 Miss. 665; 55 Am. St. Rep. 555; 19 So. 485; Box v. Stanford, 13 Sm. & M. (Miss.) 93; 51 Am. Dec. 142.
3 See Sec. 714 et seq.
4 City of Greenville v. Waterworks Co., 125 Ala. 625; 27 So. 764; Lagerfelt v. McKie, 100 Ala. 430; 14 So. 281; Murphy v. DeHaan,
116 la. 61; 89 N. W. 100; Graves County Water Co. v. Ligon, 112 Ky. 775; 66 S. W. 725; Sanger v. French.. 157 N. Y. 213; 51 N. E. 979.
5 Peek v. Peek, 77 Cal. 106; 11 Am. St. Rep. 244; 1 L. R. A. 185; 19 Pac. 227; Green v. Green, 34 Kan. 740; 55 Am. Rep. 256; 10 Pac. 156.