Mournin v. Trainor

COLLINS, J. Counsel for defendant, appellant, has specified 26 assignments of error, but it is not necessary for us to refer to them in detail, or even to discuss them in as general a manner as has counsel. There was little or no real controversy over the facts, and in our opinion there was a sufficiently definite and certain oral agreement between the parties that plaintiff was to take possession of the lot in dispute and build a house upon it, and the evidence clearly showed that the subsequent acts of plaintiff referred to resulted from and were made in pursuance of such agreement. The verbal agreement made by defendant to convey was therefore taken out of the statute of frauds by part performance. Defendant well knew, when he agreed to convey, that it was plaintiff’s purpose to take immediate possession, and to build a house. He knew what improvements were being made as the work progressed, and made no objection. It may be true that defendant did not say to plaintiff, in unmistakable and unequivocal language, that the latter might enter upon the premises and make the contemplated improvements; but, passively at least, he assented to and acquiesced in plaintiff’s proposition so to do. He was informed of the latter’s purpose and design when agreeing to convey the lot, and led him to understand that he consented to all that was intended and proposed; and as the plaintiff went on with his improvements defendant’s assent and acquiescence continued. On the faith of defendant’s promise to convey, and his implied agreement that plaintiff might take possession and build, the latter was induced and encouraged to alter his situation to such an extent that a refusal to enforce the oral promise would inflict "an unjust and unconscientious injury and loss” upon him. On the principles of estoppel, the defendant cannot be allowed to avail himself of the provisions of the statute of frauds. See Brown v. Hoag, 35 Minn. 373, 29 N. W. 135. The complaint was evidently drawn upon the theory that defend [233] ant paid no part of the purchase price of the lot, and was not to pay any part of it, and, further, that plaintiff had paid or was to pay the entire amount of the consideration of the deed through which defendant obtained the title of record. It was therefore proper to show that defendant had not paid, and, on the contrary, that plaintiff had. This was the purpose of the proof relative to the issues made by the pleadings, and to the evidence, in a suit which had theretofore been tried and determined between plaintiff and the firm of which defendant was a member. From the evidence in that case it conclusively appeared that, at plaintiff’s request, this firm paid the money, a part at the time the lot was deeded to defendant, and the balance, due upon a mortgage, at a subsequent time, charging both sums to plaintiff, who was then in their employ, and that the full amount was credited to the firm in the course of that litigation. The defendant, individually, never paid a dollar of the consideration, but the firm did, and the amount entered into the verdict in the action referred to as a charge against this plaintiff. Order affirmed.