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 Wakeman v. Dodd, 12 N. J. Eq. 567. 2 Hollis v. Whiteing, 1 Vera. 151. 3 Leak v Morrice, 2 Cas. Ch. 135.
4 Equitable Co. v. Baltimore Co., 63 Md. 285.
5 Whitchurch v. Bevis, 2 Bro. C. C. 565. See Wood v. Midgley, 5 De G., M. & G. 41. His Lordship at the same time says that the Earl of Aylesford's case (2 Stra. 783) is directly contrary; but, on reference to that decision, it is not clear that the point was involved in it. The report simply says: "There was a parol agreement for a lease of twenty-one years, upon which the lessee entered, and enjoyed for six years, and then the Earl brought a bill against him to oblige him to execute a counterpart for the residue of the term. The lessee pleaded the Statute of Frauds and Perjuries, which in argument was overruled, the agreement being in part carried into execution." equity pleading, "If an allegation, that it was part of the agreement that the contract should be put in writing, could prevent a plea of the statute, the effect in practice would be, that the statute never could be pleaded, at least without a particular denial of such allegation, rendering the plea anomalous." 1
§ 447. The next class of cases in which equity intervenes to enforce a verbal contract, notwithstanding the Statute of Frauds, consists of those where one party has done certain acts in part execution, or upon the faith of the contract, with the knowledge and consent of the other.2 And although, for the sake of convenience, it is here treated as a distinct subdivision of the general topic of equitable doctrines in regard to the statute, it may be most useful to ascertain in what respect the principles upon which it stands differ from those of the cases we have already been considering.
§ 448. It is obvious that the mere circumstance that a verbal agreement has been in part performed, can afford no reason, such as to control the action of any court, whether of law or equity, for holding the parties bound to perform what remains executory. The doctrine of equity in such cases is, that where an agreement has been so far executed by one party, with the tacit encouragement of the other, and relying upon his fulfilment of it, that for the latter to repudiate it and shelter himself under the provisions of the statute, would amount to a fraud upon the former, that fraud will be defeated by compelling him to carry out the agreement.3
1 Beames, Elements of Pleas in Equity, 181. See also Box v. Stanford, 13 Smedes & M. (Miss.) 93; Wilson v. Ray, 13 Ind. 1; Glass v. Hulbert, 102 Mass. 30, 39.
2 Whether the plaintiff can ever rely on acts of part performance done by the defendant, quaere. See §§ 453, 471, post.
3 Seagood v. Meale, Prec. Ch. 560; Savage v. Foster, 9 Mod. 35; Mor-phett v. Jones, 1 Swanst. 172; Clinan v. Cooke, 1 Schoales & L. 22; Gunter v. Halsey, 2 Ambler, 586; Allen's Estate, 1 Watts & S. (Pa.) 383; Greenlee v. Greenlee, 22 Pa. St. 225; Moore v. Small, 19 Pa. St. 461; Church of the Advent v. Farrow, 7 Rich. (S. C) Eq. 378; Sites v. Kellar,
§ 448 a. "The fraud," says Judge Wells in Glass v. Hul-bert, "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 the supposition that it was to be carried into execution, and the assumption of rights thereby to be acquired; so that the refusal to complete the execution of the agreement is not merely a denial of rights which it was intended to confer, but the infliction of an unjust and unconscientious injury and loss. In such case, the party is held, by force of his acts or silent acquiescence, which have misled the other to his harm, to be estopped from setting up the Statute of Frauds."1
§ 448 b. The cases which have already been considered present the feature of an actual fraud, an artifice, a trick, which, being alleged and proved, was relieved against by the court of equity without any reference to the statute. The fraud in cases of part-performance is no less fraud because not asserted to have been, and not, in fact, premeditated at the inception of the transaction. Hence those courts of equity whose established powers extend to all cases of fraud of whatever description are able to enforce the contract, and do so upon the ground of the fraud, and upon none other. But where, as in some of the American States, the power of courts of equity to enforce contracts in cases of fraud is specifically given them by statute, it is an important inquiry whether they can decree execution where the fraud is constructive only, arising upon the circumstances of part-performance.
6 Ohio, 207; Anthony v. Leftwich, 3 Rand. (Va.) 255; Hamilton v. Jones, 3 Gill & J. (Md.) 127; Meach v. Stone, 1 D. Chip. (Vt.) 182; Underhill v Williams, 7 Blackf. (Ind.) 125; Eyre v. Eyre, 4 Green (N. J.) 102; Caton v. Caton, L. R. 1 Ch. App. 137; Ford v. Finney, 35 Ga. 258; Feusier v. Sneath, 3 Nev. 120; Townsend v. Hawkins, 45 Mo. 286; Wheeler v. Reynolds, 66 N. Y. 227; Hart v. Carroll, 85 Pa. St. 508; Williams v. Morris, 96 U. S. 444; Thompson v. Simpson, 128 N. Y. 270; Wendell v. Stone, 39 Hun (N. Y.) 382; Union Pacific R. R. v. McAlpine, 129 U. S. 305; Fallon v. Chronicle Publishing Co., 1 McArthur (D. of C.) 485; Turner v. Johnson, 95 Mo. 431. The equitable doctrine of part-performance as a ground for enforcing a verbal contract, notwithstanding the Statute of Frauds, has been repudiated in some few of the States. Ellis v. Ellis, 1 Dev. (N. C.) Eq. 341; Dunn v. Moore, 3 Ired. Eq. (X. C.) 364; Allen v. Chambers, 4 Ired. (N. C.) Eq. 125; Albea v. Griffin, 2 Dev. &B. (N. C.) Eq. 9; Beaman v. Buck, 9 Smedes & M. (Miss.) 207; Box v. Stanford, 13 Smedes & M. (Miss.) 93; Ridley v. McNairy, 2 Humph. (Tenn.) 174; Patton v M'Clure, Mar. & Y. (Tenn.) 333. So in Massachusetts; see Jacobs v. Peterborough and Shirley R. R. Co., 8 Cush. 223, and cases there cited.