This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
1 See Swain v. Seamens, 9 Wall. (U. S.) 254; Neale v. Neales, 9 Wall. (U. S.) 1; Brown v. Hoag, 35 Minn. 373. But see Wallace v. Rappleye, 103 111. 229.
2 Montacute v. Maxwell 1 P. Wms. 618; Taylor v. Beech, 1 Ves. Sr. 297; Dundas v. Dutens, 1 Ves. Jr. 196; s. c. 2 Cox, 235; Redding v. Wilkes, 3 Bro. C. C 400; Story, Eq Jur. § 768: Finch v. Finch, 10 Ohio St. 501; Caton v. Caton, L. R. 1 Ch. App. 137; Peek v. Peek, 77 Cal. 106; Richardson v. Richardson, 148 111. 563; Richardson v. Richardson, 45 111. App. Ct. 362.
1 Eq. Jur. § 768.
2 Ungley v. Ungley, 4 Ch. Div. 73. See also remarks of same Judge in Coles v. Pilkington, L. R. 19 Eq. 174.
3 Caton v. Caton, supra.
4 Hammersly v. De Biel, 12 Cl. & Fin. 45.
5 Taylor v. Beech, 1 Ves. Sr. 207; Ungley v. Ungley, 4 Ch. Div. 73.
§ 460. It is settled that acts which are merely preparatory or ancillary to the agreement alleged are not to be considered as part-performance. Of this nature are the following: delivering abstracts and giving directions for the preparation of conveyances, or even the solicitor's taking notes and preparing the instrument, going to view the estate, fixing upon appraisers to value stock, or making valuations, measuring the land, executing and registering conveyances not accepted by the purchaser, etc.3 It is obvious that such acts as these, though tending to show a treaty in progress between the parties, do not prove any agreement executed between them, do not show the parties in a position different from that which they would be in, according to their legal rights, if there were no contract made. And so, also, where the defendant agreed to convey land to the plaintiff, on the latter's procuring a release from a stranger, which he did procure accordingly and paid a large consideration for it, it was held to be an act merely preparatory to the agreement and no part-performance.1 But where the landlord of a coal set, having four tenants, partners, holding under a lease of which there were several years to run, entered into an agreement with the four lessees that two of them should retire from the copartnership, so that the benefit of the lease and the business of the colliery should remain to the other two, and that on this being done he would grant a new lease at a reduced rent, and in accordance with this agreement the firm dissolved, and the two retiring partners released their interest therein, it was considered by Sir Knight Bruce, Vice Chancellor, impossible to treat these acts otherwise than as acts of part-performance, taking the case out of the statute; and he distinguished the case from that last quoted, because there the release procured was not between the parties to the contract which was sought to be enforced, and the procuring of it was to be antecedent to, and formed no part of, the execution of the contract.2
1 Surcome v. Pinniger, 3 De G., M. & G. 571; explaining Lassence v. Tierney, 1 McN. & G. 551.
2 Hammersly v. Baron De Biel, 12 Clark & F. 61, where Lord Cotten-ham's opinion, on appeal from the Rolls, is reported; s. c. at the Rolls, nom. De Biel v. Thomson, 3 Beav. 469. See also Caton v. Caton, L. R. 1 Ch. App. 137.
3 Earl of Glengal v. Barnard, 1 Keen, 769; Cooth v. Jackson, 6 Ves. 12; Clerk v. Wright, 1 Atk. 12; Pembroke v. Thorpe, cited in 3 Swanst. 437; Thynne v. Earl of Glengal; 2 H. L. C. 131, 158; Gratz v. Gratz, 4 Rawle (Pa.) 411; Hawkins v. Holmes, 1 P. Wms. 770; Montacute v. Maxwell, 1 P. Wms. 618; Popham v. Eyre, Lofft, 786; Whitchurch v.
§ 460 a. As the remainder of the discussion of the doctrine of part-performance will be concerned exclusively with cases of contracts for land, this may be a convenient place to consider the question, on which the authorities are conflicting, whether that doctrine really has any proper application to any contracts other than contracts for land. It is manifest that these are not the only contracts included within the provisions of the Statute of Frauds which in their nature admit of part-performance. There may be part-performance of an agreement not to be performed within a year, or of an agreement in consideration of marriage. While the marriage alone, as we have already seen,1 is not regarded as an act of part-performance which entitles the party marrying to a decree in equity for specific execution; other acts done upon the faith of the marriage contract have been held in England to be acts of part-performance entitling the party doing them to such a decree;2 but in view of more recent cases, it must be taken now as settled in England that the doctrine of part-performance has no application except to contracts for land.3 In a suit in equity to compel account of the profits of a concern, a certain share of which profits to be earned in a term outrunning one year was the verbally agreed consideration for services which had been rendered by the plaintiff, the Supreme Court of New Jersey refused even to receive evidence of the profits to ascertain the value of the services, and refused also to recognize the rendering of the services as an act of part-performance, saying that the doctrine of part-performance "applies only to contracts relating to lands " and does not extend to contracts relating to other matters.4 As a matter of principle, having regard to the substance of that doctrine, which is that when one party has so changed his situation as to the subject-matter of the agreement on the faith of the agreement, that the refusal of the other party to carry it out would inflict upon him an unjust and unconscientious injury and loss, equity will not permit the Statute of Frauds to be set up in aid of the refusal, there seems to be no reason for limiting the operation of the doctrine to any particular class of contracts included within the statute.
Bevis, 2 Bro. C. C. 559; Redding v. Wilkes, 3 Bro. C. C. 400; Givens v. Calder, 2 Desaus. (S. C.) Ch. 171; Reeves v. Pye, 1 Cranch (C. C.) 219; Colgrove v. Solomon, 34 Mich. 494. Compare Whaley v. Bagnel, 1 Bro. P. C. 345.