1 O'Reilly v. Thompson, 2 Cox, 271; Lydick v. Holland, 83 Mo. 703 Post, § 463.

2 Parker v. Smith, 1 Coll. Ch. 608.

1 Ante, § 459.

2 Hammersly v. De Biel, 12 Clark & Finnelly, 45; Surcome v. Pin-niger, 3 De G., M & G. 571.

3 Britain v. Rossiter, 11 Q. B. Div. 123; Maddison v. Alderson, 8 App. Cas. 474.

4 McElroy v. Ludlum, 32 N. J. Eq. 828. See also Wheeler v. Frank enthal, 78 111. 124; Osborn v. Kimball, 41 Kansas, 187; Equitable Co v Baltimore Co., 63 Md. 285.

§ 461. It was originally held that payment of the whole or of a considerable part of the purchase-money, upon a verbal contract for real estate, was such a part-performance as entitled the party making it to a decree for the specific execution of the contract, while, at the same time, payment of a small part was not held sufficient.1 The entire unsoundness of such a discrimination as to the amount paid is now, however, generally conceded. The objections to it are stated, with his usual force and clearness, by Sir Edward Sugden, thus: "To say that a considerable share of the purchase-money must be given, is rather to raise a question than to establish a rule. What is a considerable share, and what is a trifling sum? Is it to be judged of upon a mere statement of the sum paid, without reference to the amount of the purchase-money? If so, what is the sum that must be given to call for the interference of the court? What is the limit of the amount at which it ceases to be trifling, and begins to be substantial? If it is to be considered with reference to the amount of the purchase-money, what is the proportion which ought to be paid?" 2 And now, by an unbroken current of authorities, running through many years, it is settled too firmly for question, that payment, even to the whole amount of the purchase-money, is not to be deemed such part-performance as to justify a court of equity in enforcing the contract.1

1 Lacon v. Mertins, 3 Atk. 1; Skett v. Whitmore, Freem. Ch. 280; Owen v. Davies, 1 Ves. Sr. 82; Hales v. Van Berchem, 2 Vern. 617; Main v. Melbourn, 4 Ves. 720, and Dickenson v. Adams, there cited. See also Jones v. Peterman, 3 Serg. & R. (Pa.) 543; Hardesty v. Jones, 10 Gill & J. (Md.) 404; Frieze v. Glenn, 2 Md. Ch. Dec. 361; Rawlins v. Shropshire, 45 Ga. 182; Castleman v. Sherry, 42 Tex. 59.

2 Treatise on Vendors and Purchasers, 168. And see 1 Burton, Cas. & Opin. 136. Story Eq. Jur. § 760.

§ 462. Nevertheless, it is important to notice with some particularity the grounds on which these authorities rest. One reason which is assigned, and that which was said by Lord Redesdale to be the great reason, why payment is not to be deemed part-performance, is that the framers of the statute having expressly provided that payment in whole or in part shall be sufficient to exempt from its operation a contract for the sale of goods, wares, or merchandise, they must be presumed to have intended that it should not be sufficient in cases of contracts for lands, no such provision in favor of the latter occurring in the statute.2 And upon this view, among others, the Court of Appeals of Delaware have decreed execution of a verbal contract for land, where part of the purchase-money has been paid; the Statute of Frauds in that State, as it then stood, not presenting any such difference between the two sections.3 But it may be remarked that by the seventeenth section of the English statute, part-payment is made a substitute for the written memorandum; whereas courts of equity, as we have before noticed, never regard acts of part-performance in that light, but as demanding from them the application of certain rules which are of paramount force in their jurisdiction, and which override the statute altogether.

1 Temple v. Johnson, 71 111. 13; Glass v. Hulbert, 102 Mass. 28; Wood v. Jones, 35 Tex. 64. But otherwise in Iowa by its statute. Stern v. Nysonger, 69 Iowa, 512. Carlisle v. Brennan, 67 Ind. 12; Green v. Groves, 109 Ind. 519; Townsend v. Fenton, 30 Minn. 528; Webster v. Blodgett, 59 N. H. 120; Price v. Price, 17 Fla. 605; Neal v. Gregory, 19 Fla. 356: Humbert v. Brisbane, 25 S. C. 506; Ward v. Stuart, 62 Texas, 333; Guthrie v. Anderson, 47 Kansas, 383; Maxfield v. West, 6 Utah, 327; Boulder Valley Co. v. Farnham, 12 Mont. 1; Crabill v. Marsh, 38 Ohio St. 331; Townsend v. Vandenwerker, 20 D. of C. 197; Miller v. Lorentz, 19 S. E. Rep. (W. Va.) 391.

2 Clinan v. Cooke, 1 Schoales & L. 22; Lord Pengall v. Ross, 2 Eq. Cas. Abr. 46; Lane v. Schackford, 5 N. H. 130; Baker v. Wiswell, 17 Neb. 52.

3 Townsend v. Houston, 1 Harr. 532; Houston v. Townsend, 1 Del. Ch. 416.

§ 463. Another view is, that payment is not part-performance, because nothing is to be so regarded which does not put the party performing it in such a position that a fraud will be allowed to be practised upon him if the contract is not enforced. And this is the view which is now generally adopted, and to which Mr. Justice Story gives his approbation.1 The money, it is said, may be recovered back by action, and the parties restored to their original position. If, from the nature of the payment, or the peculiar circumstances of the case, this cannot be done, this rule would seem to fail with the reason of it. Thus an agreement by one, who was himself helpless from disease, to convey a piece of land to another, in consideration of being provided for and taken care of during his lifetime, has been enforced, in New York, against the heirs-at-law of the former; the court remarking that the rule applied to a money consideration only, and that where, as here, the services were of such a peculiar character that it was impossible to estimate their value to the recipient by any pecuniary standard, and where it was evident that they were not intended to be so measured, it was out of the power of any court, after the performance of the services, to restore the complainant to the situation in which he was before the contract was made, or to compensate him in damages.2 And so, also, where the complainant has not paid his money, but has involved himself in transactions including the contract in question, and upon the strength of it, from which he cannot retire without a damage, which would not be compensated by mere repayment, the highest court in the same State has decreed the contract to be specifically executed.1