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.
Since part performance is a doctrine of equity only, questions of part performance usually arise in suits for specific performance, and as in each case the ultimate question is whether specific performance should be given or not, the two doctrines are often involved, and re-act each upon the other. The doctrine of part performance rests upon a combination of two distinct grounds: first, that where one party has performed the contract on his part so far that he cannot be restored to his former condition even by compensation in money, refusal by the other party to perform operates as a fraud against which equity will relieve.1 Part performance involves actual possession or some act whereby the vendee has received an injury for which a court of law cannot give a complete remedy.2 The general and abstract form of stating the rule as to what may constitute part performance is that the acts relied on must be "such part performance as cannot be compensated in damages."3 As a corollary to this proposition, if money damages will fairly compensate the party seeking relief, technical part performance does not exist.4 Accordingly it is sometimes said that the acts of the party to be charged do not of themselves amount to part performance, since even if he is prejudiced thereby it gives no rights to the adversary party.5 According to some authorities, the party to be charged with the oral contract must have been benefited by the acts done in performance of the contract in order to have the doctrine of part performance apply.6 Thus a contract by lessor to pay the son of lessee for his work and labor to be performed on the farm for his father until he becomes of age, is not taken out of the statute where the lessee may have been benefited by increased crops, even if the son's labor improved the farm. Second, a further reason for holding that part performance withdraws the contract from the operation of the statute is that the performance of such acts as are classed in equity as part performance shows without relying upon the oral contract alone, that there is some kind of agreement between the parties, and the terms of such contract may then be shown by oral evidence.7 Accordingly the acts relied on as part performance must be referable exclusively to the oral contract.8 Thus part performance of a valid written contract does not validate an oral modification thereof." So possession under a prior valid lease or deed is not part performance of a subsequent oral contract.10 This general statement of the grounds upon which the doctrine of part performance rests is important as showing the considerations which have controlled courts in deciding the specific questions to be discussed hereafter ; but from its abstract form, it is of little value in determining a priori the results which the courts reach in specific cases. Not infrequently different courts reach opposite results while professing to apply the same general principles underlying part performance. Accordingly the following questions will be discussed specifically: first, what acts amount to part performance in contracts for the sale of realty or some interest therein; second, to what extent if any does the doctrine of part performance apply to contracts other than those for the sale of realty. The acts usually invoked as acts of part performance to take the contract out of the statute are change of possession of the realty sold, erection of improvements and payment of part or all of the purchase price. It will be necessary to discuss the effect of these separately and in combination, together with such other acts as are invoked to show a change of condition in reliance on the contract which cannot be compensated in damages.
3 Kidder v. Hunt, 1 Pick. (Mass.) 328; 11 Am. Dec. 183; Smith v. Phillips, 69 N. H. 470; 43 Atl. 183.
4Schultz v. Huffman, 127 Mich. 276; 86 N. W. 823.
5 Berry v. Seawell, 65 Fed. 742; 13 C. C. A. 101; Gates v. Salmon, 46 Cal. 362; McCall v. Reybold, 1 Har. (Del.) 146; Duncan v. Duncan, 93 Ky. 37; 40 Am. St. Rep. 159; 18 S. W. 1022; White v. O'Bannon, 86 Ky. 93; 5 S. W. 346; Chenery v. Dole. 39 Me. 162; Duncan v. Sylvester, 16 Me. 388; Mfg. Co. v. Heald, 5 Me. 384; Porter v. Hill, 9 Mass. 34; 6 Am. Dor-. 22; Porter v. Perkins, 5 Mass. 233; 4 Am. Dec. 52; Ballou v. Hace, 47 N. H. 347; 93 Am. Dec. 438; Wood v. Griffin, 46 N. H. 231; Dow v. Jewell, 18 N. H. 340; 45 Am. Dec. 371; Medlen v. Steele, 75 N. C. 154; unless possession lasts for the period of limitations; Johnson v. Goodwin, 27 Vt. 288; Pope v. Henry. 24 Vt. 560; Booth v. Adams, 11 Vt. 156; 34 Am. Dec. 680; contra, that possession under a contract for partition passes the legal title; McKnight v. Bell, 135 Pa. St. 358; 19 Atl. 1036; Rountree v. Lane, 32 S. C. 160; 10 S. E. 941; Kennemore v. Kennemore, 26 S. C. 251; 1 S. E. 881.
6 Dewey v. Payne, 19 Neb. 540; 26 N. W. 248.
7 Bigler v. Baker. 40 Neb. 325; 24 L. R. A. 255; 58 N. W. 1026.
1 Riggles v. Erney, 154 U. S. 244; Von Trotha v. Bamberger, 15 Colo. 1; 24 Pac. 883; Ricker v. Kelly, 1 Greenl. (Me.) 117; 10 Am. Dec. 38; Borden v. Curtis, 48 N. J. Eq. 120; 21 Atl. 472; 46 N. J. Eq. 468; 19 AU. 127; Robbins v. McKnight, 1 Halst. Ch. (N. J.) 642; 45 Am. Dee. 406. " If the- parol agreement be clearly and satisfactorily proved and the plaintiff, relying upon such agreement and the promise of the defendant to perform his part has done acts in part performance of such agreement to the knowledge of the defendant-acts which have so altered the relations of the parties as to prevent their restoration to their former condition - it would be a virtual fraud to allow the defendant to interpose the statute as a defense and thus secure to himself the benefit of what has been done in part performance." Riggles v. Erney, 154 U. S. 244, 254; quoted in Hancock v. Melloy, 187 Pa. St. 371, 379; 41 AU. 313.
2 Smith v. Finch, 8 Wis. 245; Harney v. Burhans, 91 Wis. 348; 64 N. W. 1031.
3 Moore v. Small, 19 Pa. St. 461, 467; quoted in Hancock v. Melloy, 187 Pa. St. 371, 379; 41 AU. 313.
4 Williams v. Morris, 95 U. S. 457; Bennett v. Dyer, 89 Me. 17; 35 Atl. 1004; Brown v. Hoag, 35 Minn. 373; 29 N. W. 135; Lord's Appeal, 105 Pa. St. 451; Mayer's Appeal, 105 Pa. St. 432.
5 Bennett v. Dyer. 89 Me. 17; 44 L. R. A. 482; 35 AU. 1004; Abbott v. Baldwin, 61 N. H. 583; Morris v. Gaines, 82 Tex. 255; 17 S. W. 538.
6Dunphy v. Ryan. 116 U. S. 491; Shumate v. Farlow, 125 Ind. 359; 9 L. R. A. 657; 25 N. E. 432; Bristol v. Sutton, 119 Mich. 693; 78 N.
W. 885; same case, 115 Mich. 365; 73 N. W. 424; Lydick v. Holland, 83 Mo. 703.
7 Grant v. Grant. 63 Conn. 530; 38 Am. St. Rep. 379; 29 Atl. 15: Rogers v. Wolfe, 104 Mo. 1; 14 S. W. 805; Shahan v. Swan, 48 O. S. 25; 29 Am. St. Rep. 517; 26 N. E. 222; Reynolds v. Necessary, 88 Va. 125: 13 S. E. 348.
8 Grant v. Grant, 63 Conn. 530;
38 Am. St. Rep. 379; 29 Atl. 15;
Truman v. Truman, 79 la. 506;
44 X. W. 721; Nibert v. Baghurst (N. J. Eq.), 25 Atl. 474.
9 Buttz v. Colton, 6 Dak. 306; 43 N. W. 717.
10 See Sec. 727.