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.
§ 451. It is settled by a long series of authorities, that a part execution of a verbal contract within the Statute of Frauds has no effect at law to take the case out of its provisions;1 but this of course does not apply in those jurisdictions where law and equity powers are merged in the courts, sitting nominally as courts of law. Mr. Justice Buller did on one occasion lay it down, that as there could be but one construction of the statute, and that construction should hold equally in courts of law and equity, the equitable rules in regard to part-performance should apply in law.2 Lord Redesdale says, however, that he remembers, when Mr. Justice Buller was pressed with the consequences of that opinion, in the case of a demurrer to evidence, he was obliged to abandon the position; and he adds that "the ground on which a court of equity goes, in cases of partutes giving the court jurisdiction of all suits concerning waste, etc., extended only to cases of technical waste, and not to cases of mere trespass where there is no priority of title, in which courts of equity having full powers had sometimes granted injunctions to stay irreparable damage to the inheritance. Attaquin v. Fish, 5 Met. 140. In 1874 full equity jurisdiction was conferred upon the courts of Maine.
1 OTIerlihy v. Hedges, 1 Schoales & L. 123; Kelly v. Webster, 12 C. B. 283; Lane v. Shackford, 5 N. H. 130; Inhabitants of Freeport v. Bartol, 3 Greenl. (Me.) 340; Patterson v. Cunningham, 12 Me. 506; Norton v. Preston, 15 Me. l4; Newell v. Newell, 13 Vt. 24; Thompson v. Gould, 20 Pick. (Mass.) 134; Kidder v. Hunt, 1 Pick. (Mass.) 328; Adams v. Townsend, 1 Met. (Mass.) 483; Eaton v. Whitaker, 18 Conn. 222; Thomas v. Dickinson, 14 Barb. (N. Y.) 90; Abbott v. Draper, 4 Denio (N. Y.) 51; Jackson v. Pierce, 2 Johns. (N. Y.) 221; Seymour v. Davis, 2 Sand. (N. Y.) 239; Walter v. Walter, 1 Whart. (Pa.) 292; Henderson v. Hays, 2 Watts (Pa.) 148; Sailors v. Gambril, Smith (Ind.) 82; Johnson v. Hanson, 6 Ala. 351; Allen v. Booker, 2 Stew. (Ala.) 21; Meredith v. Naish, 4 Stew. & P. (Ala.) 59; Payson v. West, Walker (Miss.) 515; Davis v. Moore, 9 Rich. (S. C.) Law, 215; Wentworth v. Buhler, 3 E. D. Smith (N. Y.) 305; Pike v. Morey, 32 Vt. 37; Boutwell v. O'Keefe, 32 Barb. (N. Y.) 434; Downey v. Hotchkiss, 2 Day (Conn.) 225; Hunt v. Coe, 15 Iowa, 197; Creighton v. Sanders. 89 111. 543; Dougherty v. Cat-lett, 129 111. 431; Henry v. Wells, 48 Ark. 485. See Green p. Jones, 76 Me. 563.
2 Brodie v. St. Paul, 1 Ves. Jr. 326.
§ 452. The right of a party who has done acts in part execution of a verbal contract, to call upon a court of equity to enforce it against the other, is subject to the same general restrictions as that of any other plaintiff in equity. He must of course show that he is himself ready to perform the contract on his part. It must also appear that his position is such that an action at law for damages will not afford him adequate relief.2 And, as will be hereafter discussed more at length, he must furnish clear and full proof of the contract, so that it may be enforced finally, and with due regard to the rights of all parties concerned.3
§ 453. Again, the acts of part-performance relied upon by the plaintiff must be acts done by himself. This appears to have been first declared in the case of Buckmaster v. Harrop, where the Master of the Rolls, Sir William Grant, said that acts done by the defendant, where there was no prejudice to the plaintiff, amounted only to proof of the existence of an agreement, but that the objection upon the statute, that the agreement was not in writing, remained; adding, that the court did not profess to execute a verbal agreement merely because it was satisfactorily proved.4 In support of this proposition, he cited the case of Whaley v. Bagnel, in the House of Lords, which, however, does not appear to have involved an adjudication upon it.1 But it cannot require many authorities for its support, being founded in manifest reason and justice. If the defendant chooses to waive the benefit of his own acts of part-performance, which would entitle him to allege a fraud on the part of the plaintiff, it cannot be that the plaintiff may force him to rely upon them, thus, in effect, himself setting up his own fraud.2 The decision in Buckmaster v. Harrop has indeed been attacked in Pennsylvania, but entirely without necessity; the court having to determine simply in that case, whether delivery of possession of land could be asserted by the vendor plaintiff as an act of part-performance done by himself; apparently losing sight of the distinction, which is more particularly noted hereafter,8 between his so asserting it, and his asserting the purchaser's taking possession, - an act which, by the rule in Buckmaster v. Harrop, could only be relied on by the purchaser, or those claiming under him.4 With the exception of this case, there appears to be no dissent from that rule, on the part of any judicial or other authority.6
1 O'Herlihy v. Hedges, 1 Schoales & L. 130. In Humphreys v. Green, L. R. 10 Q. B. D. 148, it was fully discussed by the judges of the Queen's Bench Division on appeal, whether damages might not be recovered for breach of a contract to devise land in a suit at law based upon alleged part-performance by the party suing.
2 Frame v. Dawson, 14 Ves. 386; Pembroke v. Thorpe, cited 3 Swanst. 441, note; Eckert v. Eckert, 3 Penna. Rep. 332; Parkhurst v. Van Cort-landt, 1 Johns. (N. Y.) Ch. 273; Townsend v. Sharp, 2 Overt. (Tenn.) 192; Armstrong v. Kattenhorn, 11 Ohio, 265; Wright v. Pucket, 22 Grat. (Va.) 370; Williams v. Morris, 95 U. S. 444; Sheldon v. Preva, 57 Vt. 263.
3 Post, §§ 493 et seq.
4 Buckmaster v. Harrop, 7 Ves. 341. See Glass v. Hulbert, 102 Mass. 30.
§ 454. Another general rule in regard to the acts relied upon is, that they must appear to have been done in pursuance of the contract alleged. To use the language of Lord Hardwicke, "it must be such an act done, as appears to the court would not have been done, unless on account of the agreement;"6 or, as it is expressed by Sir William Grant, it must be "an act unequivocally referring to, and resulting from, the agreement."1 This rule is laid down in many cases, and will be found fully illustrated hereafter, when we come to consider in detail the different classes of acts which are commonly relied upon as part-performance.