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.
By the statute of frauds the contract or memorandum is to be signed by the party to be charged therewith. Xothing is said about signature by both parties. Accordingly, in many cases it has been held that equity will give specific relief against the party who has signed the contract at the instance of the party who has not signed it.1 A reason given for this position by some courts is that by filing a bill for specific performance the plaintiff has made the contract enforceable as against himself, and has thereby eliminated the want of mutuality. It might be suggested, however, that in giving specific performance in this class of cases the courts were simply complying with the statute of frauds, which does not make such contracts illegal, void, or voidable, but simply makes them impossible of proof in an action against a party who has not signed a written contract or memorandum as provided by statute. In other jurisdictions, by a sort of judicial legislation, an addition has been made to the terms of the statute, and it has been held that whatever the rights of the parties at law, equity will not grant specific performance against the party who signed the written contract or memorandum at the instance of the party who did not sign them, since the contract could not have been enforced as against the latter. Part performance of an oral contract to sell realty renders it mutual.2
1 Tryce v. Dittus, 199 111. 189; 65 N. E. 220.
2 Federal Oil Co. v. Oil Co., 121 Fed. 674; 57 C. C. A. 428; affirming, 112 Fed. 373.
3 Brooklyn Baseball Club v. Mc-Guire. 116 Fed. 782. ( Negative relief sought by injunction.)
4 Marble Co. v. Ripley, 10 Wall. (U. S.) 339.
5 Iron Age Publishing Co. v. Telegraph Co., 83 Ala. 498; 3 Am. St. Rep. 758; 3 So. 449.
6 Hoetor-Johnson Co. v. Billings, 65 Neb. 214; 91 N. W. 183.
7 Ballon v. March, 133 Pa. 3t. 64; 19 Atl. 304.