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 doctrine of part performance, so-called, is in most jurisdictions treated as a purely equitable doctrine. Accordingly in such jurisdictions part performance of an oral contract which is within the statute does not withdraw it from the operation of the statute at law, and no action at law can be brought thereon.1 Thus an oral conract for the assignment of a lease by which the assignee agrees to pay to the lessor the rent stipulated in the lease does not, by part performance, cease to be within the statute as far as concerns the right of lessor to sue the assignee at law upon the covenants of the lease.2 So a vendor cannot on part performance of an oral contract to convey an interest in realty,3 such as an easement,4 maintain an action at law for breach of the contract. So in an oral contract to partition realty, taking possession of their respective shares, does not confer the legal title upon the parties.5 This view is not entertained in all jurisdictions. In some, part performance withdraws a contract from the operation of the statute even at law.6 Thus in Nebraska taking possession of realty under an oral contract and making valuable improvements thereon even though coupled with a default in payment of the purchase price are such acts of part performance as to defeat an action of ejectment by the vendor against a vendee in possession.7
6 Moore v. Allen, 26 Colo. 197; 77 Am. St. Rep. 255; 57 Pac. G98; Cat-alini v. Catalini, 124 Ind. 54; 19 Am. St. Rep. 73; 24 N. E. 375; Petty v. Petty. 4 B. Mon. (Ky.) 215; 39 Am. Dec. 501.
1 Eaton v. Whitaker, 18 Conn. 222; 44 Am. Dec. 586; Chicago Attachment Co. v. Machine Co., 142 111. 171; 15 L. R. A. 754; 28 N. E. 959; reversed on rehearing 25 N. E. 669; affirmed 31 N. E. 438; Sigmund v. Newspaper Co., 82 111. App. 178; Butler v. Sheehan, 61 111. App. 561; Hunt v. Coe, 15 la. 197; 81 Am. Dec. 465; Hamilton v. Thirston, 93 Md. 213; 48 Atl. 709; Thompson v. Gould, 20 Pick. (Mass.) 134; Kidder v. Hunt, 1 Pick. (Mass.) 328; 11 Am. Dec. 183; Schultz v. Huffman, 127 Mich. 276; 86 N. W. 823; Hallett v. Gordon, 122 Mich.
567; 81 N. W. 556; (modified on rehearing in 122 Mich. 573; 82 N. W. 827; because under the statute assumpsit would lie for the fraudulent representations by defendant in this case to induce plaintiff to buy realty from defendant's principal) ; Nally v. Reading, 107 Mo. 350; 17 S. W. 978;. Tiefenbrun v. Tiefen-brun, 65 Mo. App. 253; Smith v. Phillips, 69 N. H. 470; 43 Atl. 183; McElroy v. Ludlum, 32 N. J. Eq. 828; Kling v. Bordner, 65 O. S. 86; 61 N. E. 148; Buck v. Pickwell, 27 Vt. 157; Hibbard v. Whitney, 13 Vt. 21.
2 Chicago Attachment Co. v. Machine Co., 142 111. 171; 15 L. R. A. 754; 28 N. E. 959; reversing on rehearing, 25 X. E. 669; affirmed 31 N. E. 438; Nally v. Reading, 107 Mo. 350; 17 S. W. 978.