§ 457 a. It is important here, as well as throughout the discussion of the question of equity jurisdiction over the enforcement of oral contracts in which the defence of the Statute of Frauds may be relied upon, to bear in mind the nature and foundation of that jurisdiction. It is to be remembered that the term "part-performance" falls short of describing the whole doctrine and theory of courts of equity in this matter.1 The principle is well stated in a case frequently referred to in this chapter.2 After pointing out the general head of equity jurisdiction, viz., fraud, the Supreme Court of Massachusetts, by Wells, J., says: "The fraud most commonly treated, as taking an agreement out of the Statute of Frauds is that which consists in setting up the statute against its performance, after the other party has been induced to make expenditures, or a change of situation in regard to the subject-matter of the agreement, or upon and consent of the defendant, entered into articles with a third person (Webb) to grant him a lease of the premises for seven years, as soon as he should be in possession of the lease from the defendant." The questions presented and decided in the case related only to the pleadings, but, in the course of the hearing, in reply to a suggestion by the counsel for the plaintiff that the sufficiency of the part-performance alleged could not be argued till the hearing on the merits, the Lord Chancellor, Thurlow, said: "Supposing you have laid a sufficient part-performance in your bill, I cannot conceive the plea would have held. . . . But the great point is, whether you can plead the Statute of Frauds, without supporting the plea by an answer, averring that there was no parol agreement. I put out of the case all the facts, charged in the bill as a part-performance, considering them as weak and trivial, and by no means amounting to a part-performance." It will be noticed that the last remark was obiter, and the language of Lord Thurlow does not warrant the inference that he intended thereby to make any statement concerning the general doctrines of part-performance, but simply to show that, in the case before him, enough was not alleged to give a court of equity the power to enforce performance of the contract.

1 As was well said by the court in Meach v. Perry, 1 D. Chip (Vt.) 191, "The question never ought to have been, Is it a case of part-performance? But, does the part-performance, with the attending circumstances, make a case of fraud, against which a court of equity can relieve? " See Brown v. Hoag, 35 Minn. 373.

2 Glass v. Hulbert, 102 Mass. 34, 35.

1 See similar statements of the doctrine in Swain v. Seamens, 9 Wall. (U. S.) 254; Neale v. Neales, 9 Wall. (U. S.) 1; Tate v. Jones, 16 Fla. 216; Ungley v. Ungley, 4 Ch. Div. 73. And on the general ground of a person being estopped by his conduct to rely upon this defence, see Vicks-burg & Meridian R. R. Co. v. Ragsdale, 54 Miss. 200; Hayes v. Livingston, 34 Mich. 384; Gheen v. Osborne, 11 Heisk. (Tenn.) 61; Brown v. Hoag, 35 Minn. 373; O'Fallon v. Clopton, 89 Mo. 284.

§ 458 a. At the outset it should be observed that the application of the rules as to equitable enforcement must to a considerable extent be governed by the circumstances of each case. As has been well said in a recent case in Minnesota, "the courts have never assumed or attempted to lay down any general rule as to what would or would not constitute part-performance, but have rather contented themselves with applying this principle to the facts of each case, by which, under a gradual process of inclusion and exclusion, it has been determined that certain states of facts will operate as an equitable estoppel, and that certain others will not."

§ 459. It would certainly seem that where a party, to whom a marriage portion has been promised, actually enters into the marriage upon the faith of the promise, this is such a change of condition on the faith of the agreement as answers all the requirements of courts in decreeing specific performance. But it appears to be firmly settled that the mere marriage will not be sufficient.2 This, as Judge Story says, is at variance with the rules governing other cases of contract, and is to be treated as a peculiar case standing on its own grounds;1 and Vice Chancellor Malins has expressed his regret that such an exception was ever made.2 The argument in favor of it has been that "marriage is necessary to bring the case within the statute, and to hold that it also takes the case out of the statute would be a palpable absurdity," 3 and that " such agreements are always performed before they become the subject of judicial consideration, and so no case would ever be within the statute," if marriage were held to be part-performance. But is this so? Suppose a woman agrees to marry a man, on the faith of his promise to settle her property to the use of her own family; both sides of the contract executory; and the woman marries him; it is hard to see why the principle of part-performance as a doctrine of equity should not cover the case. In a case in the House of Lords,4 where the old rule that marriage was not part-performance was in terms (though unnecessarily) reasserted, Lord Cottenham used language very forcible showing the equitable ground for the contrary opinion. He said: "The principle of equity is this: if a party holds out inducements to another, clearly and deliberately, and the other party consents and celebrates the marriage in consequence of them, if he had good reason to expect that it was intended that he should have the benefit of the proposal which was so held out, a court of equity will take care that he is not disappointed, and will give effect to the proposal." § 459 a. Where, however, there is not only a marriage but any further act done, in reliance upon the promise sued upon, there a claim to specific execution may be sustained.5 Thus, in a case before the Lords Justices, it was held that the son-in-law having, after the marriage and with the knowledge of the father-in-law and without objection by him, entered upon and used and improved premises which it was verbally proved the latter had said he intended to give to him and his wife, a case of part-performance was made out, and the petition of the administrator of the father-in-law, for payment over to him of the purchase-money upon a sale of the premises by the son-in-law to a third party, was dismissed.1 So, also, where an intended husband, whose wife was to receive upon her marriage a large settlement, engaged by the same agreement to settle a certain jointure upon her, which he did before the marriage took place, both Lord Cottenham and afterward Lord Campbell and Lord Chancellor Lyndhurst strongly inclined to hold it a sufficient part-performance, though the marriage which had ensued was of itself not sufficient. Upon this point, however, no decision was passed, the case being determined upon a distinct ground.2