Cobb v. Hall

The opinion of the court was delivered by Redfield, Ch. J. The parties in this case both agree that the contract, being one concerning the title of land and not reduced to writing, was within the statute of frauds. No question seems to have been made, at the time, but the one hundred dollars was paid towards the agreed price of the land, and, under the charge of the court, the jury have found that there was no failure to perform the contract upon the other side, by giving the deed as stipulated, and that no demand was made of the plaintiff in regard to executing his notes, or to whom they should be made payable, [513] different from the contract. The jury must have found this in order to have given a verdict for the defendant under the charge. The only question remaining in the case then is, whether the party paying part of the purchase money of an estate, when the contract is within the statute of frauds, may, at his election, and while the other party is ready and willing to perform on his part, recover it back. This we understand to be in conflict with all the decisions upon the subject; Shaw v. Shaw, 6 Vt. 69; Smith v. Smith, 14 Vt. 440. It is the universal rule upon this subject that the party cannot; recover in such case. The statute does not render the contract? void, but only provides that no action shall be maintained upon it. But for all purposes of defense the contract is perfectly valid, as I has been often decided in different forms of action. What is done under the contract, and in part performance of it, is perfectly valid And the payment of part of the price in money is as much part performance of the contract as paying it in labor, as in the cases cited above. And it is none the less part performance because it is not such a part performance as will in equity take the case out of the statute. Equity does not regard this such part performance as to take the case out of the statute because the money, at law, is full compensation. But we are not to infer from this that the party may always recover the price paid. He may recover it in that class of cases where equity, for other reasons, will decree a conveyance ; that is, where the other party declines to convey. If the other party is ready and willing to convey, according to the contract, as in this case, there is no occasion to go into a court of equity, or to bring an action for the price. But where the other party refuses to convey, if possession has been taken under the contract, equity will decree a conveyance, and if no possession has been taken, the party may recover back what he has paid. But so long as the party agreeing to convey is ready and willing to perform, he is not liable to any action, either at law or in equity, for anything done under the contract. Judgment affirmed.