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 Lord Bolton v. Tomlin, 5 Ad. & E. 856.
2 Crane v. Gough, 4 Md. 316; Andrews v. Jones, 10 Ala. 400; Craig v. Vanpelt, 3 J. J. Marsh. (Ky.) 489; Watrous v. Chalker, 7 Conn. 224; Pawle v. Gunn, 4 Bing. N. C. 445; Shaw v. Woodcock, 7 Barn. & C 73; 8. c. 9 D. & R. 889; Price v. Leyburn, Gow, 109; McCue v. Smith, 9 Minn. 252; Beal v. Brown, 13 Allen (Mass.) 114.
1 Morgan v. Griffith, L. R. 6 Exch. 70; Angell v. Duke, L. R. 10 Q. B. 174; Green v. Saddington, 7 El. & B. 503; Lavery v. Turley, 6 Hurlst. & N. 239; Price v. Leyburn, Gow, 109; Souch v. Strawbridge, 2 C. B. 814, per Tindal, C. J.; Seago v. Deane, 4 Bing. 459; Wetherbee v. Potter, 99 Mass. 360; Preble v. Baldwin, 6 Cush. (Mass.) 549; Brackett v.Evans, 1 Cush. (Mass.) 79; Page v. Monks, 5 Gray (Mass.) 492; Eastham v. Anderson, 119 Mass. 526; Remington v. Palmer, 62 N. Y. 31; Worden v. Sharp, 56 111. 104; Allen v. Aguirre, 7 N. Y. 543; Jewell v. Ricker, 68 Me. 377. See Bonner v. Campbell, 48 Pa. St. 286; Tripp v. Bishop, 56 Pa. St. 424; Freed v. Richey, 115 Pa. St. 361; McCarthy p. Pope, 52 Cal. 561; Russell v. Berkstresser, 77 Mo. 417; Walsh v. Colclough, 6 U. S. Cir. Ct. App. 114, 56 Fed. Rep. 778. Hoyle v. Bush, 14 Mo. App. 408; Huston v. Stewart, 64 Ind. 388; Arnold v. Stephenson, 79 Ind. 126; Worley v. Sipe, 111 Ind. 238; Huff v. Hall, 56 Mich. 456; Toan v. Pline, 60 Mich. 385; Bork v. Martin, 132 N. Y. 280; Smart v. Smart, 24 Hun N. Y.) 127; McGinnis v. Cook, 57 Vt. 36; Kirk v. Williams, 24 Fed. Rep. 437; Walker v. Shackelford, 49 Ark. 503; Galley v. Galley, 14 Neb. 174; Watson v. Baker, 71 Texas 739; Lyman v. Lyman, 133 Mass. 414; Haviland v. Sammis, 62 Conn. 44; Showalter v. McDonnell, 83 Texas 158. A delivery of the deed to a third party in escrow is held not a delivery to the purchaser so as to hold him liable to action for the price, under the rule stated in the text, in Cagger v. Lansing, 43 N. Y. 550; but contra, in Negley v. Jeffers, 28 Ohio St. 90; Kelsey v. McDonald, 76 Mich. 188; Ducett v. Wolf, 81 Mich. 311; Waldron v. Laird, 65 Mich. 237. A tender of a deed of land under a verbal contract is not sufficient to support an action for the agreed price. Hodges v. Green, 28 Vt. 358. See Ballard v. Bond, 32 Vt. 355; King v. Smith, 33 Vt. 22. But see Walker v. Owen, 79 Mo. 563.
2 Townsend v. Townsend, 6 Met. (Mass.) 319; Hibbard v. Whitney, 13 Vt. 21; Ballard v. Bond, 32 Vt. 355; Root v. Burt, 118 Mass. 521; Reyman v. Mosher, 71 Ind. 596; Nugent v. Teachout, 67 Mich. 571; Winters v. Cherry, 78 Mo. 344. In Michigan the decisions upon this point seem to be conflicting. Whipple v. Parkes, 29 Mich. 369; Liddle v. Needham, 39 Mich. 147; Waldron v. Laird, 65 Mich. 237; Whiter. Cleaver, 75 Mich. 17. Where an agreement by the vendee to give the vendor a pass-way over other land forms a part of the consideration for the sale and conveyance of land, and the vendee is placed in possession of the land sold and conveyed, and the grantor is placed in the use of executed by any assignment in writing. Smart v. Harding,1 in 1855, was decided in the same way; but there was in this case, also, an agreement to assign an interest, not sufficiently executed by a written assignment. In Hodgson v. Johnson,2 in the Queen's Bench, it was again argued that the plaintiff could recover upon the executory part of the contract, all its stipulations which the statute covered having been executed. Substantially Lord Campbell admitted such to be the rule of law, saying, "Where a contract consists of two collateral agreements, one only of which relates to an interest in land, then if that part of the contract has been executed, the fact of the whole contract not being in writing will not preclude an action on the other part founded on a promise to be performed after such execution." 3 But in this case, also, there had not in fact been an execution of all that part of the contract which fell under the statute. In Morgan v. Griffith,4 in the Exchequer, a valid lease had been delivered and accepted pursuant to an oral contract, and the lessee was allowed to recover upon a stipulation of the lessor to keep down the rabbits on the demised property. Here the correct doctrine, as it is understood to be, was directly affirmed.6 In Angell v. Duke,6 in the Queen's Bench, where the declaration alleged a parol agreement for a lease to be given to the plaintiff, and for repairs to be made and more furniture put in by the defendant, and that the lease had been given, but the defendant did not put in the furniture, and the plaintiff sued for breach of this last stipulation, there was a demurrer, which admitted the giving of a valid lease; and the plaintiff recovered upon the parol agreements to repair the premises and to put in more furniture. The opinions go upon the ground (doutbful on the language of the declaration) that the contract was unilateral, the taking of the lease being optional with the defendant. Cocking v. Ward is remarked upon as a decision of little weight; and on the whole, Angell v. Duke may be regarded as affirming the correct doctrine.1 But in a contemporaneous decision in the Exchequer,2 although a valid lease was delivered, it was still held that this did not make enforceable an agreement to pay a bonus. The doctrine of Angell v. Duke cannot therefore be regarded as established in the English courts.
§ 117 a. This doctrine is commended by soundness in principle, and has in its favor the clear weight of authority; but there are cases really or apparently opposed to it, and a somewhat extended examination of these will be useful. The first was Cocking v. Ward,1 decided in the Court of Common Pleas in 1845. The plaintiff occupied certain premises as tenant under a lease having several years to run, and the defendant agreed orally to pay him .£100 if he would give up the rest of the term, and get the landlord to accept the defendant as tenant in his place. The plaintiff left the premises and the defendant entered, but afterwards refused to pay the £100, and for breach of his agreement to pay it the suit was brought. It was urged in argument in the plaintiff's behalf that, since the stipulation covered by the statute had been performed, the promise to pay was actionable. This was denied by Tindal, C. J., who delivered the opinion of the court; but recovery was allowed upon a subsequent oral admission by the defendant that he owed the money. Waiving the question whether the recovery was rightly so allowed,2 it is to be observed that the stipulations covered by the statute had not been performed, as no valid assignment or surrender had been made, though this point was not noticed by the court. Kelly v. Webster,3 seven years later in the same court, followed Cocking v. Ward, a brief opinion being delivered by Maule, J. In this case, also, the agreement, which was in part to assign a lease, was not the pass-way, the former will not he allowed to prevent the latter from using the pass-way, upon the ground that the contract therefor was within the Statute of Frauds, and a court of equity will not allow the vendee to hold the land and at the same time refuse to pay for it. Champion v. Munday, 85 Ky. 31.