It is nearly everywhere a settled doctrine of the courts of equity, resting upon their jurisdiction to prevent fraud, that an oral contract within the statute will be specifically enforced in favor of one who proves acts in reliance upon the contract which reasonably import the existence of the contract or are "unequivocally referable to the contract," and which make it impossible to place him in statu quo.1 The acts most frequently relied upon are the taking or giving of possession under contracts for the sale or lease of land, and the making of improvements. When, as the result of these or other sufficient acts, the contract becomes enforceable in equity, though not at law, there may seem to be little reason for raising an obligation to make restitution, even if the defendant defaults. It has been held in some jurisdictions that no such obligation exists, and that consequently neither money paid2 nor the holding that the purchaser is not prevented from sueing the vendor for restitution by the fact that he might enforce specific performance against a subsequent purchaser with knowledge.

1 Maddison v. Alderson, 1883, 8 App. Cas. 467, 476, (land); Hodson v. Heuland, [1896] 2 Ch. 428, (land); Williams v. Morris, 1877, 95 U. S. 444, (land); Cooley v. Lobdell, 1897,153 N. Y. 596; 47 N. E. 783, (land). Contra: Albea v. Griffin, 1838, 2 Dev. & Bat. Eq. (22 N. C.) 9, (land). For additional eases, accord and contra, see Browne, "Statute of Frauds," (5th ed.), Sec. 448 et seg.; Wald's pollock, "Contracts" (Williston's ed.), pp. 790-791.

2 Cilley v. Burkholder, 1879, 41 Mich. 749; 3 N. W. 221; Johnson v. Puget Mill Co., 1902, 28 Wash. 515; 68 Pac. 867. And see Dowdle v. Camp, 1815, 12 Johns. (N. Y.) 451. But see, contra: Smith v. Rogers, 1886, 42 Hun (N. Y. Sup. Ct.) 110, (aff. 118 N. Y. 675; 23 N. E. 1146), and Whitaker v. Burrows, 1893, 71 Hun 478; 24 N. Y. Supp. 1011,

Of course, where the doctrine that part performance or a change of value of services rendered1 under such circumstances may be recovered. But if a purchaser may elect to sue a vendor in default for restitution instead of for damages in the case of a written contract (post, Sec. 262), it would seem that in fairness he should be permitted to sue him for restitution instead of for specific performance in the case of an oral contract within the statute but enforceable in equity.

Suppose that the vendor of land, after such part performance by the purchaser as makes the contract enforceable, but before the purchaser's right to specific performance matures, conveys to an innocent purchaser for value. In jurisdictions where, in such an event, the court of equity will award damages in lieu of specific performance,2 the enforceability of his contract, in a broad sense, is not affected. But in jurisdictions where damages will not be awarded in case the plaintiff knows, when he commences suit, that by reason of a conveyance to an innocent purchaser he is not entitled to specific performance,3 the purchaser's right to enforce the contract may be utterly lost. Upon such a showing, it seems probable that, at least in equity, restitution would be decreed.4 position in reliance upon the contract makes it enforceable in equity is rejected, this question cannot arise. See Rhea v. Allison, 1859, 3 Head (40 Tenn.) 176.

1 Mahan v. Close, 1895, 63 Minn. 21; 65 N. W. 95. Contra : Reynolds v. Reynolds, 1902, 74 Vt. 463; 52 Atl. 1036, in which the court said (p. 466): "If there was an equitable relief also, it was for the benefit of the plaintiff, not of the defendant, who cannot insist that he should be compelled to do what he has been asked to do and has refused." See also Smith v. Hatch, 1865, 46 N. H. 146, where it was held that upon the refusal of the defendant to convey, the plaintiff could either enforce the contract or recover the value of land conveyed by him to the defendant.

2 See Gupton v. Gupton, 1870, 47 Mo. 37; Pomeroy, "Specific Performance of Contracts " (2d ed.), Sec. 478.

3 See Milkman v. Ordway, 1870, 106 Mass. 232, 253; Pomeroy, "Specific Performance of Contracts " (2d ed.), Sec. 477.

4See King v. Thompson, 1835, 9 Pet. (U. S.) 204; Johnston v. Glancy, 1835, 4 Blackf. (Ind.) 94; 28 Am. Dec. 45; Green v. Drum-mond, 1869, 31 Md. 71; 1 Am. Rep. 14; Capps v. Holt, 1859, 5 Jones' Eq. (58 N. C.) 153; Pomeroy, "Specific Performance of Contracts" (2d ed.), Sec. 478.