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.
Cravens, 1 Head (Tenn.) 108. See Masson v. Swan, 6 Tenn. 450; Dow-ling v. McKenney, 124 Mass. 478. See also on this subject, Chap. XIX., post. But if a bill be filed for the specific execution of an agreement for the purchase of land, alleged to be evidenced by a written memorandum, and the allegation be not sustained by the proof, the plaintiff cannot under the prayer for general relief obtain compensation for improvements on the land. Smith v. Smith, 1 Ired. (N. C.) Eq. 83; Treece v. Treece, 5 B. J. Lea (Tenn.) 221; Powell v. Higley, 90 Ala. 103; Deisher v. Stein, 34 Kan. 39.
1 Williams v. Bemis, 108 Mass. 91; White v. Wieland, 109 Mass. 291; Gray v. Hill, Ry. & M. 421, per Best, C. J.; Smith v. Smith, 4 Dutch. (N. J.) 208; Pulbrook v. Lawes, 1 Q. B. D. 284. See Rainer v. Huddle-ston, 4 Tenn. 223; Wade v. Newbern, 77 N. C. 460; Wainwright v. Talcott, 60 Conn. 43.
2 Cook v. Doggett, 2 Allen (Mass.) 439; Gillet v. Maynard, 5 Johns. (N. Y.) 85; Shreve v. Grimes, 4 Litt. (Ky.) 220; Harden v. Hays, 9 Pa. St. 151; Miller v. Tobie, 41 N. H. 84; Welsh v. Welsh, 5 Ohio, 425; Farnam v. Davis, 32 N. H. 302; Cocheco Aqueduct Association v. B. & M. R. R., 59 N. H. 312. See Well v. Banister, 4 Mass. 514; Kemble v. Dresser, 1 Met. (Mass.) 271; Bacon v. Parker, 137 Mass. 309. But see Wiley v. Bradley, 60 Ind. 62.
3 Richards v. Allen, 17 Me. 296; Lockwood v. Barnes, 3 Hill (N. Y.) 128; Rucker v. Abell, 8 B. Mon. (Ky.) 566; Shreve v. Grimes, 4 Litt. (Ky.) 220. See Dix v. Marcy, 116 Mass. 416; Watkins v. Rush, 2 Lans. (N. Y.) 234. And see McCafferty v. Griswold, 99 Pa. St. 270.
§ 121. Where the purchaser under a verbal contract for land has been put in possession, and has made payments on account of the price, it is plain that he cannot recover the money without surrendering or offering to surrender the possession;5 nor can he resist a suit upon his promissory note for the price, upon the ground of a failure of consideration, since he has derived and continues to enjoy an essential benefit conferred by the contract, and since the plaintiff has placed himself in a condition which enables the defendant, upon payment of the purchase-money, to enforce a specific execution of the agreement in a court of equity.1 Where the vendee has repudiated the contract, and holds possession of the land, not by force of the contract, but by permission of the vendor, there the latter cannot recover for any unpaid part of the purchase-money.2
1 McNew v. Toby, 6 Humph. 27.
2 Sugden, Vend. & P. 857; Turner v. Marriott, L. R. 3 Eq. 744. 3 Ewing v. Osbaldiston, 2 Myl. & C. 53.
4 McCampbell v. McCampbell, 5 Litt. 92; Rucker v. Abell, 8 B. Mon. 566.
5 Abbott v. Draper, 4 Denio (N. Y.) 51; Cope v. Williams, 4 Ala. 362.
§ 122. The right in the vendee of land by verbal contract, to recover what money or other consideration he has paid, is clearly confined to those cases where the vendor has refused or become unable to carry out the contract, the plaintiff himself having faithfully performed or offered to perform on his part.3 This rule is sometimes said to rest upon the ground necticut, in a case where the plaintiff by oral agreement bound himself to serve the defendant for a term longer than one year, for a consideration to be paid at the end of that time, and, having repudiated the contract and quitted his employer at the end of six months, brought his action to recover the value of the services so rendered, held that he could recover, and that the defendant could not set up the existing verbal agreement to defeat his claim.1 The court does not notice the established rule prohibiting the recovery of money paid for land where the vendor is willing to convey; and perhaps the cases may be thus distinguished. In the case of the suit to recover the purchase-money of the land, all that remains to be performed is required of the defendant, and he may waive the privilege, afforded by the statute, of refusing to convey. In the case of the suit to recover for partial services rendered, the defence is that the plaintiff is bound to perform additional services; but these services the plaintiff may refuse to perform, as his contract to that effect is within the statute and not binding without writing. In the former case, that which is within the statute is to be done by the defendant, and, if he is willing to do it, the plaintiff cannot force him to stand upon the statute. In the latter case, that which is within the statute is to be done in part by the plaintiff, and to force him to do it, by setting up the verbal contract as a bar to his recovery for the value of services rendered, would be to enforce the verbal contract by way of defence. This was put with great precision in an opinion of the Supreme Court of Massachusetts, delivered by Thomas, J., "In the case of the money paid upon a contract for the sale of land, the action fails because no failure is shown of the consideration from which the implied promise springs. In the case at bar, the defence fails because the contract upon which the defendant relies is not evidenced as the statute requires for its verification and enforcement." 1 The doctrine of the supreme court of Connecticut and that of Massachusetts, above referred to, that one who has partly performed a contract covering more than a year of time, may, repudiating the unexecuted part, have his action for the worth of what he has done, has also been recognized in New York, by the Court of Appeals. Land was conveyed in consideration of the grantee's undertaking to give to the grantor (a railroad company) all his freight business for a period longer than a year. After observing the contract for some time, the grantee repudiated it, and action was then brought by the grantor for the full value of the land. In defence to this, the grantee claimed his right to have the value of his observance of this contract for the time he had observed it deducted from the value of the land; and this claim, against the plaintiff's objection under the statute, was allowed.2 When we compare the case of a plaintiff who has conveyed property under a verbal contract of sale, and that of a plaintiff who has rendered service, there is an apparent inconsistency in the application of the rule we are discussing. If the latter plaintiff can repudiate his contract to perform further services, and recover the proved value of what he has rendered, why may not the former plaintiff repudiate the contract to receive for the property he has conveyed a certain stipulated price, and recover its proved value? The answer appears to be that in the latter case the defendant may return the property, while in the former he cannot return the service, but only its money equivalent.