Hibbard v. Whitney

The opinion of the court was delivered by Redfield, J. The object of this action is to recover damages for the non-performance of a parol contract to convey lands, on the ground that the contract had been performed on the part of the plaintiff. The only controversy is whether the contract has been performed. The contract is “ for the sale of lands the “ action is upon the contract,” and damages are sought to be recovered, because the contract has not been performed. No case more expressly within the statute of frauds could be supposed. The court think the action at law cannot be maintained. If this were an action to recover the price of land, agreed to be paid in money, when it was admitted the land had been conveyed, and the only controversy was about the payment of the price, in money, or in any other mode, not within the statute of frauds, the action would well lie. Bowen v. Bell, 20 Johns. 338. Goodwin v. Gilbert, 9 Mass. 510. Wilkinson v. Scott, 17 Mass. 249. The same principle has been before recognized by this court. In such a case all that part of the contract, which was within the statute of frauds, had been [24] performed, by the execution and delivery of the deed. Bui here the contract was “ for the sale of lands” on both sides. Part performance will never enable a party to sustain an action, at law, in direct violation of the terms of the statute of fraU(jS- part performance is a ground of relief in equity, only, and there the court proceed mainly on the basis of relief from fraud. Meach v. Stone & Perry, 1 D. Chip. 182. Clinan v. Cooke, 1 Scho. & Lef. 22,41. Judgment affirmed.