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 Gillespie v. Battle, 15 Ala. 276; Curnutt v. Roberts, 11 B. Mon. (Ky.) 42; Ott v. Garland, 7 Mo. 28; McMurray's Appeal, 101 Pa. St. 421. But see Bates v. Terrell, 7 Ala. 129.
2 Johnson v. Hanson, 6 Ala. 351.
3 Hawley v. Moody, 24 Vt. 603; Shaw v. Shaw, 6 Vt. 69; Lockwood v. Barnes, 3 Hill (N. Y.) 128; Abbott v. Draper, 4 Denio (N. Y.) 51; Green v. Green, 9 Cowen (N. Y.) 45; Coughlin v. Knowles, 7 Met. (Mass.) 57; Dowdle v. Camp, 12 Johns. (N. Y.) 451; Lane v. Shackford, 5 N. H. 130; Richards v. Allen, 17 Me. 296; Collier v. Coate, 17 Barb. (N. Y.) 471; Bedinger v. Whitamore, 2 J. J. Marsh. (Ky.) 552; Barick-man v. Kuykendall, 6 Black. (Ind.) 21; Sims v. Hutchins, 8 Sm. & M. (Miss.) 320; Donaldson v. Waters, 30 Ala. 175; Cobb v. Hall, 29 Vt. 510; Miller v. Tobie, 41 N. H. 84; Mitchell v. McNab, 1 Brad. (111.) 297; Galway v. Shields, 66 Mo. 313; Allis v. Read, 45 N. Y. 142; Galvin v. Prentice, 45 N. Y. 162; Van Valkenburgh v. Croffut, 15 Hun (N. Y.) 147; Green v. North Carolina R. R. Co., 77 N. C. 95; Adams v. Smilie, 50 Vt. 1; Plummer v. Breckman, 55 Me. 105; Wetherbee v. Potter, 99, Mass. 354; Cook v. Doggett, 2 Allen (Mass.) 439; Day v. Wilson, 83 Ind. 463; Sennett v. Shehan, 27 Minn. 328; Milligan v. Dick, 107 Pa. St. 259; Hill v. Grosser, 59 N. H. 513; Flinn v. Barber, 64 Ala. 193; Venable v. Brown, 31 Ark. 564; Syme v. Smith, 92 N. C. 338; McKinney v. Harvey, 38 Minn. 18. But see Hairston v. Jaudon, 42 Miss. 380; Collins v. Thayer, 74 111. 138; Scott v. Bush, 26 Mich. 418; Casson v. Roberts, 31 Beav. 613. The last-named case was practically overruled in Thomas v. Brown, 1 Q. B. D. 714. If the vendor meanwhile die, and administration is taken and the estate represented insolvent, so that the whole estate has to be reduced to cash, as of the day of the death, then the vendee may come in under the commission for his compensation. Sutton v. Sutton, 13 Vt. 71. Where a portion of the agreed price has been paid, it may be rethat the vendor, when in such an action, merely defends upon the verbal contract, and that this is not prohibited by the statute.1 As a general proposition, however, we shall hereafter see that a verbal contract within the statute cannot be enforced in any way, directly or indirectly, whether by action or in defence.2 And it does not seem necessary to impeach that proposition, in order to sustain the rule in question. In such cases of suit by the vendee to recover the consideration paid, it has been suggested that the contract is substantially executed on the part of the vendor, he being able and willing to perform everything which in conscience he was bound to perform, and the vendee never having put him in default by a demand for title.3 But another and better view, taken in a well-considered decision of the Supreme Court of New York, is that the right of the vendee in any case to recover what he has paid stands upon the ground that the vendor has received and holds it without consideration, so that a promise to repay it will be implied; but that if the vendor is able and willing to perform on his part, no such want or failure of consideration can be shown, and such promise is not implied.4
§ 122 a. Whether this rule is equally applicable to every case of a verbal contract within the Statute of Frauds, where the party who has refused to carry out the contract brings his action to recover for what he has done under it, is a question not free from difficulty. The Supreme Court of Concovered upon the vendor's refusal to convey, without proving a tender of the rest, an averment of readiness and willingness being sufficient. Tucker v. Grover, 60 Wisc. 233; Nims v. Sherman, 43 Mich. 45; Sutton v. Rowley, 44 Mich. 112; Weaver v. Aitcheson, 65 Mich. 285.
1 Shaw v. Shaw, 6 Vt. 69; Philbrook v. Belknap, 6 Vt. 383.
2 See post, §§ 131-136.
3 Rhodes v. Storr, 7 Ala. 346; Meredith v. Naish, 3 Stew. (Ala.) 207.
4 Abbott v. Draper, 4 Denio 51. See Collier v. Coates, 17 Barb. 471; Coughlin v. Knowles, 7 Met. (Mass) 57; Browning v. Walbrun, 45 Mo. 477; Cameron v. Austin, 65 Wisc 652; Sennett v. Shehan, 11 Rep. 401. Also, ante, § 120.
1 Comes v. Lamson, 16 Conn. 246. See Clark v. Terry, 25 Conn. 395; King v. Welcome, 5 Gray (Mass.) 41. But see Abbott v. Inskip, 29 Ohio St. 59. In the case of Campbell v. Campbell, 65 Barb. (N. Y.) 639, the contract was that the plaintiff should serve the defendant till defendant died, in consideration of a conveyance of land, to be then made to the plaintiff; after serving some time, the plaintiff refused to serve further, and sued for the value of the past service; held, that the defendant being ready to perform on his part, the plaintiff could not prevail; and rightly, because this defence did not force upon the plaintiff the performance of a contract covered by the statute, for his contract was not such (see post, § 134): it was a case under the common rule that partial payment, in consideration of defendant's contract, cannot be recovered while the defendant is willing to perform and waive his statute defence (see § 122 b). But see Kriger v. Leppel, 42 Minn. 6. Where the failure to serve out the term was without fault of either party, it has been held that recovery at the contract rate might be had for the portion of the term served. La Du King Co. v. La Du, 36 Minn. 473.
1 King v. Welcome, 5 Gray 45.
2 Day v. N. Y. C. & H. R. R. Co., 51 N. Y. 583. And see Turnow v. Hochstadter, 7 Hun 80.
§ 122 b. Upon the same principle that the vendee cannot recover the purchase-money while the vendor is willing to convey, it is also held that the vendor of land can only enforce the vendee's note for the purchase-money against him, when he shows his own ability and willingness to perform.1 Indeed, in such an action the defence must be, not upon the Statute of Frauds, but the want or failure of consideration; and this defence cannot be made out if the plaintiff shows his ability and willingness to convey according to the bargain.2 But the admission of a vendor that he has no title may furnish a good ground for abandoning the possession and rescinding the contract, and, it would seem, a good ground for defending an action for the unpaid purchase-money, or for an action to recover that which has been paid.3