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 Cocking v. Ward, 1 C. B. 858.
2 See Pulbrook v. Lawes, 1 Q. B. D. 290; also Hooker v. Knab, 26 Wisc. 511, deciding that a duty arising from a promise covered by the statute cannot be enforced by virtue of a second promise also covered by the statute.
3 Kelly v. Webster, 12 C. B. 283.
1 Smart v. Harding, 15 C. B. 652.
2 Hodgson v. Johnson, El. B. & E. 685. See this case remarked upon as to another point, in Pulbrook v. Lawes, 1 Q. B. D. 284.
3 Green v. Saddington, 7 E. & B. 503, cited as authority for the proposition quoted, was decided after Cocking v. Ward, and professed to be distinguished from it. Crompton, J., did not concur.
4 Morgan v. Griffith, L. R. 6 Exch 70.
5 See also Mann v. Nunn, 43 L. J. C. P. 241.
6 Angell v. Duke, L. R. 10 Q. B. 174.
§ 117 b. And in this country, as well as in England, decisions opposed to it are to be found. In Baldwin v. Palmer,3 in the Court of Appeals of New York, the defendant agreed to convey to the plaintiff certain premises free from all encumbrances, for a certain sum of money; the plaintiff paid his money and took his deed, but shortly afterwards discovered an unpaid assessment which he was obliged to pay himself, and brought this action to recover. His action was not sustained, the court holding that the conveyance of the land was not enough to take the rest of the contract out of the statute. And so in Dow v. Way,4 where the defendant agreed to sell a house and lot to the plaintiff, and perform certain labor on it, for $1,500; and plaintiff paid the money and defendant conveyed the house, but afterwards failed to perform the labor as agreed; and the plaintiff brought his action for such breach; he was held not entitled to recover. On the other hand, in the case of Allen v. Aguirre,5 in the New York Court of Appeals, the plaintiff, who bought goods from the defendant and paid for them, with the understanding that if certain customs duties which the defendant had paid upon the goods should afterwards be remitted, the amount should be returned to the plaintiff, brought action on the contract for the amount which had been so remitted, and his action was allowed. And in the case of Remington v. Palmer,1 in the same court, upon a state of facts not substantially distinguishable from those in Baldwin v. Palmer, that case, though not cited, was in effect overruled, and the correct doctrine was affirmed.
1 In Mechelen v. Wallace, 7 Ad. & E. 49, the contract had never been executed by giving a lease, and therefore no recovery could be had on the other parts of the agreement. But see Steemod's Administrator v. Railroad Co., 27 W. Va.
2 Sanderson v. Graves, L. R. 10 Exch. 234.
3 Baldwin v. Palmer, 10 N. Y. 232. See Liddle v. Needham, 39 Mich. 147.
4 Dow v. Way, 64 Barb. 255.
5 Allen v. Aguirre, 7 N. Y. 543.
§ 117 e. A question similar to that of the right to recover on the verbal contract for breach of engagements not covered by the statute, when all that are covered by it have been performed, has sometimes arisen in cases involving the enforcement of contracts under which one party has performed, but the other is not, by the terms of his contract, required to perform till after the expiration of a year. It has been sometimes held that the party who has performed may sue at once upon the contract. But as the cases referred to turn upon the language of statutes of frauds relating to contracts not to be performed within a year from the making, a discussion of them will be reserved till that provision of the statute is considered.2
§ 118. Having considered the case of complete execution of the contract by both parties, and the case of complete execution by both parties of so much of the contract as is covered by the statute, we have now to consider the case of complete execution of so much of the contract as the statute does not cover, leaving the remainder executory. Under this head, the general rule is that such execution by one party does not entitle him to an action at law for damages for the non-performince by the other,3 although in certain cases a court of equity will decree specific execution of the agreement on such grounds.1 A party, however, who has paid money in fulfilment of a verbal contract which the other refuses or becomes unable to carry out, may recover it in an action for money had and received; he may also recover property or its value, delivered in the same way, by any suitable proceeding;2 and where a piece of property is delivered in payment, as being worth a certain sum, it is not in the power of the defendant, without the plaintiff's consent, to return the specific things received, but he must refund in the usual mode for money had or goods sold.3 In like manner, one who has rendered services in execution of a verbal contract which, on account of the statute, cannot be enforced against the other party, can recover the value of the services upon a quantum meruit;1 and this is true when, after part performance, the contract is broken by the plaintiff refusing to go on and complete the service;. for if the defendant could compel him to do so, that would be to enforce the special contract.2
1 Remington v. Palmer, 62 N. Y. 31. See also Supervisors of Schenectady v. McQueen, 15 Hun 551.
2 Post, §§ 289. et seq.
3 But see Smock v. Smock, 37 Mo. App. 56.
1 See Chapter XIX (Verbal Contracts Enforced In Equity).
2 Basford v. Pearson, 9 Allen (Mass.) 387; Kidder v. Hunt, 1 Pick. (Mass.) 328; Seymour v. Bennet, 14 Mass. 266; Greer v. Greer, 18 Me. 16; Kneeland v. Fuller, 51 Me. 518; Lockwood v. Barnes, 3 Hill (N. Y.) 128; Keeler v. Tatnell, 23 N. J. L. 62; Rutan v. Hinchman, 30 N. J. L. 255; Gray v. Gray, 2 J. J. Marsh. (Ky.) 21; Barickman v. Kuykendall, 6 Blackf. (Ind.) 21; Allen v. Booker, 2 Stew. (Ala.) 21; Luey v. Bundy, 9 N. H. 298; Keath v. Patton, 2 Stew. (Ala.) 38; Root v. Burt, 118 Mass. 521; Williams v. Bemis, 108 Mass. 91; White v. Wieland, 109 Mass. 291; Parker v. Tainter, 123 Mass. 185; Jellison v. Jordan, 69 Me. 373; Moody v. Smith, 70 N. Y. 598; Rosepaugh v. Vredenburgh, 16 Hun (N. Y.) 60. See Baker v. Scott, 2 Thomp. & C. (N. Y.) 606; Mannen v. Bradberry, 81 Ky. 153; Cade v. Davis, 96 N. C. 139; Bacon v. Parker, 137 Mass. 309; Whitaker v. Burrows, 71 Hun (N. Y.) 478; Bedell v. Tracy, 65 Vt. 494; Parker v. Niggeman, 6 Mo. App. 546; Jarboe v. Severin, 85 Ind. 496; Johnson v. Krassin, 25 Minn. 117; Pressnell v. Lundin, 44 Minn. 551; Day v. N. Y. Central R. R, 22 Hun (N. Y.) 416; Segars v. Segars, 71 Me. 530; Gifford v. Willard, 55 Vt 36; Welch v. Darling, 59 Vt. 136; Adams v. Cooty, 60 Vt. 395; Nelson v. Shelby, Mfg. & Imp. Co., 96 Ala. 515; Worth v. Patton, 5 Ind App. Ct. 272. In Eaton v. Eaton, 35 N. J. L. 290, the rule was applied in a case of money paid in pursuance of a parol trust. See also Schroeder v. Loeber, 75 Md. 195. Davis v. Farr, 26 Vt. 592, appears to be opposed to the rule stated in the text.