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 Dale v. Hamilton, 5 Hare, 381. And see Forster v. Hale, 3 Ves. Jr. 696. Also § 463 notes, post.
2 Maddison v. Alderson, 8 App. Cas. 476. 3 See sec. 463, note 2.
§ 456. These remarks, though they may somewhat anticipate the discussion, which it has been thought best to defer to a later page, of what acts are or are not deemed sufficient as part-performance, are valuable at this point, as embodying, in singularly clear and forcible phrase, the correct rule as to the extent to which acts of part-performance may be said themselves to afford, or to be required to afford, proof of the contract alleged. There are indeed some cases 1 in which it is broadly laid down that they must themselves furnish unequivocal evidence of the contract alleged, but this leaves the whole doctrine exposed to the criticism of Mr. Roberts, by confounding the offices and degrees of the two classes of parol evidence; the first, to prove some contract existing; the second, to prove the terms of that contract; the first, to sustain the allegation of fraud so as to let in the second; the second, to satisfy the court of all the terms of that contract which it is called upon to enforce. And these cases, to this extent, are opposed to the clear preponderance of judicial opinion.2 They would seem to have proceeded upon an imperfect apprehension of the force of Sir William Grant's language that the acts of part-performance must "unequivocally refer to the agreement;" which means that they must appear to have been done in pursuance of it, but not that they must themselves, and without any suppletory evidence, prove the terms of it.
1 Phillips v. Thompson, 1 Johns. (N. Y.) Ch. 131; Beard v. Linthi-cum, 1 Md. Ch. Dec 345; Grant v. Craigmiles, 1 Bibb (Ky.) 203; Chesapeake & Ohio Canal Co. v. Young, 3 Md. 480; Goodhue v. Barnwell Rice (S C.) Eq. 198; Sitton v. Shipp, 65 Mo. 297.
2 Allan v. Bower, 3 Bro. C. C. 149; Morphert v. Jones, 1 Swanst. 172; Frame v. Dawson, 14 Ves. 386; Sutherland v. Briggs, 1 Hare, 26; Savage v. Carroll, 1 Ball & B. 265; Toole v. Medlicott, 1 Ball & B 393; Church v. Sterling, 16 Conn. 388; Harris v. Knickerbacker, 5 Wend. (N. Y.) 638; Parkhurst v. Van Cortland, 14 Johns. (X. Y.) 15; Jones v. Peter-man, 3 Sere. & R. (Pa.) 543; Grant v. Grant, 63 Conn. 530; Andrews v. Babcock, Ibid. 109, 122.
§ 457. It is also sometimes further said that the acts of part-performance relied upon by the plaintiff must have been done in execution of the contract, or, as Mr. Roberts expresses it, "must appear to be done with a direct view to perform the agreement, and tend inceptively towards its accomplishment." 1 Acts of part-performance do, ex vi termini, it would seem, come under this description. Still, it is often the case that acts are done by the plaintiff, and acquiesced in by the defendant, which cannot be said to be done in execution of the contract, because the contract does not stipulate that they should be done, yet which are such that if the defendant acquiesced in their being done, it would prevent him from afterward relying upon the statute, - acts, for instance, so connected with the performance of the contract that from the nature of the case the defendant should understand they were done in reliance upon his agreement. An illustration of this is found in the rule that the expenditure by the plaintiff of money in improvements upon the land may entitle him to specific performance, although this formed no part of what he was to do under the terms of the contract. On the other hand, however, it is obvious that the acts done must obviously be related to and connected with the contract and the defendant's performance of it. If any act, however disconnected with the agreement, which a plaintiff might proceed to do upon the faith of the agreement, were to be regarded as a reason for the interposition of equity, because prejudicial to him, known to the defendant, and incapable of adequate compensation in damages, the inconvenience would be serious and manifest.2
1 Roberts on Frauds, 140. See Gunter v. Halsey, 2 Ambl. 586; Buck-master v. Harrop, 7 Ves. 341.
2 See Parker v. Heaton, 55 Ind. 1: Williams v. Morris, 90 U. S. 444; Lydick v. Holland, 83 Mo. 783. In Whitchurch v. Bevis, 2 Bro. C. C. 559, the bill stated, among other circumstances which were relied upon to meet the defence of the statute, that "the plaintiff had, with the privity 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 Bearing in mind, as was said in another part of the same opinion, "the purport and force of the statute, which reaches no farther than to deny the right of action to enforce such agreements," we see here a plain and satisfactory ground for equitable jurisdiction, together with a clear indication of the proper limitations of its exercise. A plaintiff, seeking specific performance of an oral agreement affected by the statute, must be able to show clearly not only the terms of the contract, but also such acts and conduct of the defendant as the court would hold to amount to a representation that he proposed to stand by his agreement and not avail himself of the statute to escape its performance; and also that the plaintiff, in reliance on this representation, has proceeded, either in performance or pursuance of his contract, to so far alter his position as to incur " an unjust and unconscientious injury and loss, in case the defendant is permitted after all to rely upon the statutory defence." After proof of this, the court may well be justified in using its undoubted power, in cases of equitable estoppel, to refuse to listen to a defendant seeking to deny the truth of his own representations previously made. § 458. The change of situation necessary to create the equitable estoppel must have been made in reliance upon and in pursuance of the contract, although it is not confined to the doing of what the contract stipulates, i. e., part-performance, strictly so called.1 As that phrase, however, is commonly used as a short and convenient statement of the general ground of specific performance, it will be used in the present discussion, except as to those cases where the equitable circumstances were not acts which the contract stipulated should be done, and were consequently not part-performance, or indeed performance at all.