"exercise their jurisdiction, in decreeing specific performance of verbal agreements, where there has been part performance, for the purpose of preventing the great injustice · which would arise from permitting a party to escape from the engagements he has entered into, upon the ground of the Statute of Frauds, after the other party to the contract has, upon the faith of such engagement, expended his money or otherwise acted in execution of the agreement. Under such circumstances, the court will struggle to prevent such injustice from being effected; and, with that object, it has, at the hearing, when the plaintiff has failed to establish the precise terms of the agreement, endeavored to collect, if it can, what the terms of it really were."

§ 564. Such being the principle on which the court acts, it follows that, wherever the acts of the party to be charged have caused no change of circumstances in the other party, (x) and wherever the acts of part performance by the one are not such as to render refusal by the other party to perform the contract a fraud in him, however clearly they may evidence the existence of a contract, there the jurisdiction in question can have no application; and this may be the case either from the character of the person permitting the acts, or from the nature of the acts themselves.

§ 565. From what has been said, it appears that the acts of part performance must in all cases be done by the person asserting the contract with the knowledge of the person sought to be charged that the acts are being done and are being done on the faith of the contract; without such knowledge there would be neither injustice nor fraud.

§ 566. On the ground that the character of the person permitting the acts prevented the notion of fraud, it has been decided that where a plaintiff seeks to enforce against a remainderman a parol contract entered into between the plaintiff and the tenant for life, acts of part performance which would have bound the tenant for life will not bind the remainderman, unless it can be shown that he permitted the acts of the plaintiff with a knowledge of the contract entered into by the tenant for life. (y) For to constitute

(x) Caton v. Caton, L. R. 1 Ch., 137; S. C., in D. P. L. R., 2 H. L., 127.

(y) Blore v Sutton, 3 Mer, 237; Whitbread v. Brockhurst, 1 Bro. C. C., 404; per Lord Redesdale in Shannon v. Bradstreet, 1 ch.

& Lef., 72; per Lord Cranworth in Morgan v. Milman, 3 De G. M. & G., 33. See, too, Flesher v. Trotman, 3 Giff., 9; O'Fay v. Burke, 8 Ir. Ch. R., 225; Hope v. Cloncurry, I. R. 8 Eq 555.

fraud, there must coincide in one and the same person knowledge of some fact and conduct inequitable having regard to such knowledge. And again, on the same principle, where the acts are those of persons not parties to the contract, they will not be binding; so that, for instance, acts done by arbitrators towards the performance of their duty, are not part performance of a parol contract for a compromise and division of estates by arbitrators.(z)

§ 567. From the nature of the act it follows, that though, as we shall hereafter see, it has been a question how far the acceptance of part of the purchase money binds the vendor, the payment of this on the part of the purchaser can in no wise bind him, because to refuse to complete the contract after paying "part of the purchase money, would be no fraud upon the seller, but his own loss."(a) The question was raised in a case where the co-heirs of a purchaser sought the enforcement of the contract against his personal representatives, and set up his part payment as a part performance, making it a binding contract; (b) but, on the ground above stated, Grant, M. R., decreed against the claim of the heirs.

§ 568. Upon the same principle it seems doubtful whether any acts which admit of alternative remedies, one by the execution of the contract and another by some other means, as, for instance, a compulsory taking under the lands clauses consolidation act, can be taken as part performance; because there is no fraud on the other party if the remedy other than that by execution of the contract be pursued. (c)

§ 569. Thirdly, the contract which the acts of part performance allow to be set up by parol evidence must be of such a nature as that the court would have had jurisdiction. to enforce it specifically, if it had been in writing. In this respect the jurisdiction of the high court is the same as that of the court of chancery. The rule in the latter court was that where there was jurisdiction in the original subject matter, viz., the contract, the want of writing would not deprive the court of it, where there was part performance. But the want of writing could not itself be made the ground

(z) Cooth v. Jackson, 6 Ves., 12.

(a) 7 Ves., 345.

(b) Buckmaster v. Harrop, 7 Ves., 341; S. C., on appeal, 13 id., 456.

(c) See per Lord Cranworth in Morgan v. Milman, 3 De G. M. & G., 35.

of jurisdiction; for, if that were so, all parol contracts required by the Statute of Frauds to be in writing, and in part performed, might have been enforced in equity, which was not the case. Accordingly, a demurrer to a bill for work and labor done, alleging fraud and part performance, was allowed by Lord Cottenham. (d)'

§ 570. This principle is illustrated by cases in which there has been a want not of writing, but of a seal Thus, where the plaintiff stated a claim against a company for work and labor done on the estate of the company, and alleged that, as the contract was not under seal, and as the company claimed the legal estate in the land, he had no remedy except in chancery, a demurrer by the company to the plaintiff's bill was allowed. (e)

§ 571. So, again, where the engagement is of an hon

、

(d) Kirk v Bromley Union, 2 Ph, 640. The case of Pembroke v. Thorpe (3 Sw., 437, n.), may appear at variance with this view, but will be reconciled by considering that Lord Hardwicke held the court to have an

original jurisdiction in respect of building contracts. See supra, § 76

(e) Crampton v. Varua Railway Co., , L. R. 7 Ch, £62.

1 Valuable improvements made by vendee upon real property under a contract for its purchase.] It is a well-settled rule that, where possession has been surrendered under a parol contract, and the vendee has entered and made valuable improvements, which have enhanced the value of the property, that act constitutes a part performance which will take the case out of the operation of the Statute of Frauds. Wills v. Stradling, 3 Ves., 378; Savage v. Foster, 5 Vin. Abr., 524; Stockley v. Stockley, 1 V. & B., 23; Sutherland v. Brigs, 1 Hare, 26; Mundy v. Joliffe, 5 My. & Cr., 167; Toole v. Medlicott, 1 Ball & B., 393; Surcome v. Pinniger, 3 De G. M. & G., 571; Newton v. Swazey, 8 N. H., 9; Annara v. Merritt, 13 Conn., 478; Tilton v. Tilton, 9 N. H., 385; Dugan v. Colville, 8 Tex., 126; Blakely v. Ferguson, 3 Eng. (Ark.), 272; Grant v. Ramsey, 7 Ohio St., 157; Casler v. Thompson, 3 Green's Ch., 59: Kidder v. Barr, 35 N. H., 236; Mason v. Wallace, 3 McLean, 148; Sater v. Hill, 10 Ind., 176; Mims v. Lockett, 33 Ga, 9: Cummings v. Gill, 6 Ala., 562; Williston v. Williston, 41 Barb., 635; Hoffman v. Fett, 39 Cal., 109; Despain v. Carter, 21 Mo., 331; Green v. Finn, 35 Conn., 178; Netherby v. Ripley, 21 Tex, 434; Tohler v. Folsom, 1 Col., 207; School District v. McLoon, 4 Wis., 79; Massey v. McIllwane, 2 Hill's (S. C.) Ch., 421: Johnson v. McGrader, 15 Mo., 365; Finncane v. Kearney, Freem.'s (Miss.) Ch., 65; Outenhouse v. Burleston, 11 Tex., 87; Blunt v. Tomlin, 27 Ill., 93; Bonner v. Cauldwell, Harring.'s (Mich ) Ch., 67; Mason v. Blair, 33 Ill., 194; Brock v. Cook, 3 Port., 464; Moreland v. Lemasters, 4 Blackf., 383; Edwards v. Fry, 9 Kan., 417; Greg v. Hamilton, 12 id.. 333; Johnson v. Bowden, 37 Tex., 621; Claton v. Frazier, 33 id., 91; Home v. Rogers. 32 id., 218; Freeman v. Freeman, 43 N. Y., 34; Ingels v. Patterson, 36 Wis., 373; Patterson v. Copeland, 52 How. Pr., 460; Perkins v. Hadsell, 50 Ill., 216; Shirley v. Spencer, 4 Glm.., 583; Thornton v. Henry, 2 Scam., 218; Kelly v. Stainsbury, 13 Ohio, 408; Haines v. Haines, 6 Md., 435; Tracey v. Tracey, 14 W. Va., 243; Vickers v. Sisson, 10 id., 12; Pfiffner v. Stillwater and St. Paul R. R. Co., 23 Minn., 343. In De Wolf v. Pratt, 42 Ill, 198, will be found the following: "A verbal contract for the sale of land will be enforced, where it is shown to have been fairly made, on a valuable consideration, a considerable portion of the purchase money paid, no unreasonable delay in paying the whole, possession taken, improvements made, no disposition shown by the plaintiff to evade the contract, and no evidence of hardship."

orary and not of a legal character, part performance gives the court no jurisdiction. (f) Thus, in the case of Lord Walpole v. Lord Orford, (g) where two testators on the same day, and in the presence of the same witnesses, executed mutual wills; one of the testators having died, it was argued that there was part performance under circumstances which could only be referred to a contract between the testators to make such wills; but Lord Rosslyn, though inferring an agreement of some sort, held it to have been a merely honorable engagement, and one which the court therefore could not carry into effect.

§ 572. On the same principle there can be no part performance of an incomplete contract. For acts to amount to part performance, the contract "must be obligatory, and what is done "must be done under the terms of the agreement and by force of the agreement." (h)

§ 573. Where, however, the owner of a ship-building yard proposed to construct a siding from it to a railway station close at hand, and obtained from the railway company a general assent to his proposal, and proceeded to make the siding, without the details of the arrangement having been agreed upon, and after the construction of the siding was allowed to use it on terms embodied in an informal memorandum; it was held that even had there not been any actual user, the court would probably have found means to enforce the completion of some arrangement by which the company would have been compelled to allow the siding to be used on reasonable terms, and that, the memorandum showing what were reasonable terms, an arrangement on that footing would be enforced (i)

§ 574. It is, perhaps, scarcely needful to observe that where the possession taken is not under a contract but adverse, the circumstance that there is no common-law remedy does not suffice to give the court jurisdiction. (j)

§ 575. The general character of the acts which are requisite to constitute part performance for the purpose in question having been stated, it is proposed now to show the

(f) Cf supra, § 301.

(g, 3 Ves., 402

(h) Per Lord Brougham in Lady E. Thynne v. Earl of Glengall, 2 H. L. C., 158.

(i) Laird v. Birkenhead R'y Co., Johns., 500.

(j) East India Co. v. Nuthumbadoo Veerasawmy Moodelly, 7 Moo. P. C. C., 482.

result of these principles in respect of some particular acts.(k)

§ 576. Possession is in some cases equivocal in respect of the title to which it is to be referred :(7) in other cases it is not therefore, the possession of a tenant, after the expiration of a lease, which was referable only to a contract for a renewal, has been considered part performance of such a contract.(m)1

§ 577. Still more clearly "the acknowledged possession of a stranger in the land of another is not explicable except on the supposition of an agreement, and has, therefore, constantly been received as evidence on an antecedent contract."(n) Thus, to refer to an often cited case, where a

(k) Consider, in addition to the cases referred to in the text Kelly v. Walsh, 1 L. R. Ir., 275, where giving consent to a lease was held to be, under the circumstances of the case, an act of part performance.

(1) See Lamare v. Dixon, L. R 6 H. L., 414; Millard v. Harvey, 34 Beav., 287.

(m) Dowell v. Dew, 1 Y. & C. C. C, 345; 12 L. J. Ch, 158; cf. Buckmaster v. Harrop, 13 Ves., 456, 474; Millard v. Harvey, 13 W R., 125; 10 Jur. (N. S), 1167; Powell v. Love

grove, 8 De G. M & G., 357, 367 Distinguish Brady's Case, 15 W. R, 753.

(n) Per Plumer, M. R., in Morphett v. Jones, 1 sw., 181. See, accordingly, Butcher v Stapely, 1 Vern., 363; Pyke v. Williams, 2

., 455; Earl of Aylestord's Case, 2 Str., 783; Stewart v. Denton, 1 Fonbl. Eq, 187; Savage v Carroll, 1 Ball & B., 265; Kine v. Balfe, 2 id., 343; Dale v. Hamilton, 5 Ha., 381; Pain v. Coombs, 3 Sin. & Gif, 449; S. C, 1 De G. & J, 34.

1 Rule where possession has been entered upon.] The doctrine of part performance by possession of the vendee is now well established, both in this country and in England. Mr. Justice Story says: "If upon a parol agreement a man is admitted into possession, he is made a trespasser, and is liable to answer as a trespasser if there be no agreement valid in law or equity. Now, for the purpose of defending himself against a charge as a trespasser, and a suit to account for the profits in such a case, the evidence of a parol agreement would seem to be admissible for his protection, and if admissible for such a purpose there seems no reason why it should not be admissible throughout." Story's Eq. Jur., $ 761. See, also, Pugh v. Good, 3 Watts & Serg., 56; Simmonds v. Hill, 4 Har. & Mchew, 251; Jones v. Peterman, 3 Serg & Rawle, 543; Burns v. Sutherland, 7 Pa. St., 103; Davis v. Townsend, 10 Barb., 333; Bassler v. Niesly, 2 Serg. & Rawle, 352; Letcher v. Crosby, 2 A K. Marsh. 106; Wilber v. Paine, 1 Ohio St., 251; Abbott v. Draper, 4 Denio, 51; Peifer v. Landis, 1 Watts, 392; McFarland v. Hall, 3 id., 37; Miller v. Hower, 2 Rowle, 53; Gill v. Newman, 13 Minn., 462; Folmer v. Dale, 9 Pa. St., 83; Smith v. Underdunk, 1 Sandf. Ch., 579; contra, Catlett v. Bacon, 33 Mass., 269. The rule is very much strengthened by the fact that the possession is accompanied or preceded by the payment of the purchase money, or some part of it. Pike v. Morey, 32 Vt., 37; Drury v. Conner, 6 Har. & Johns, 288; Stevens v. Wheeler, 25 Ill., 300; Underhill v. Williams, 7 Blackf., 125; Tibbs v. Barker, 1 Blackf., 58; Byrd v. Odem, 9 Ala., 755; Sutton v. Sutton, 13 Vt., 71; Wimberly v. Bryan, 55 Ga., 198; Fitzsimmons v. Allen, 39 Ill., 440; Billington v Welsh, 5 Binney, 120; Gilday v. Watson, 2 Serg. & Rawle, 407; Adams v. Fulham, 43 Vt, 592; Aster v. Lamareaux, 4 Sandf., 524; Kellums v. Richardson, 21 Ark., 137. "The acknowledged possession of a stranger of the land of another is not applicable, except on the supposition of an agreement, and has, therefore, constantly been received as evidence of an antecedent contract.' Sir T. Plumer, J., in Morphett v. Jones, 1 Swanst., 181; Butcher v. Sheply, 1 Vern., 363; Pyke v. Williams, 2 id., 455.

But in these cases actual delivery of possession, or assent to taking possession, must be shown. Wrongful possession is not sufficient. Jervis v. Smith, 1 Hoff. Ch., 470; Lord v. Underdunk, 1 Sandf. Ch., 46; see Wagoner v. Speck,