[136]

to. It assumes the existence of the agreement, since, as has been before said, the acts must appear to have been done with a direct view to perform a particular agreement, and thus, by a That the e- circulating process of reasoning, they prove and are proved from quitable doctrine of part the agreement at the same time. To call any thing a part-perperformance formance, before the existence of the thing, whereof it is said to as applied to the statute, be the part-performance, is established, is an anticipation of proof proceeds in by assumption, and gets rid of the statute by jumping over it; a circulating course of reasoning.

That those

• cases are re

garded as out of the statute

where agreements

ed from be.

for the statute requires proof, and prescribes the medium of proof. But to frustrate its caution, we take for granted a fact, which we then set about proving, by a description of evidence, which we say takes the case out of the statute, as it tends to establish the agreement without the danger of fraud or perjury. The agreement is the thing to be proved, or the conclusion, but by an inverted syllogism, we take the conclusion for our premises, to avoid encountering at the threshold the direct resist ance of the statute.

It is easy to see that this is a very different mode of procedure from that which the courts are to be regarded as pursuing in the case of fraudulent suppression or representation, where there is a substantive ground, and a consistent principle of relief, upon which the wrong is redressed, by forcing the party deceiving to make such reparation as he is competent to make, and by shaping a constructive or presumed agreement to the attainment of that object. In cases of that sort, the relief is granted as a consequence of jurisdiction, which the legislature will not be supposed to have intended to invade.

Upon the same principle of relief, those cases have been regarded as being out of the statute, where agreements intended to be reduced to writing have been prevented from being so reduced by fraud: for, in such cases, the fraud arises out of a distinct transaction, and, being once established, every thing is to are prevent- be presumed against it; and an agreement shall be presumed ing reduced such as in conscience ought to be understood as virtually implied into writing in the transaction: the proof sets out without involving any reference to an existing positive agreement. *But when cases of simple part-performance are said to be founded on fraud, the relief distin- fraud there supposed is not understood to arise out of any distinct guishedfrom previous transaction, but to be committed by and to consist in the that which prevails in act of insisting upon the statute; a doctrine which depends upon

by fraud.

[137]

The princi

ple of this

that circulating logic above adverted to: for, if the resistance the case of simple partunder the statute constitutes the fraud, it must do so by a refer- performence to a supposed agreement, the terms of which must be con- ance. sidered as established before the court has any foundation for its relief.(67)

Where the fraud has been considered as committed by the very resistance under the statute, the agreement is first taken as proof of the fraud, and then the fraud is held to take the agree ment out of the statute as to the method of proof, or, in other words, to let in parol evidence of what is assumed as established, before the evidence can be justified or applied. It is true, an unconscientious use may be made of the statute, but this is such a fraud as it was in the power of the party deceived to have prevented by a compliance with the statute; and he seems to have no reasonable ground to complain of the consequences of his voluntary neglect. Upon the whole, the courts have good reason to regret their own habit of temporising with a law, which, if uniformly enforced, was calculated to prevent perjury and deceit in the transactions to which its provisions extended, by the peremptory prescription of a method of proof, well adapted to disconcert the fraudulent, by imposing a test both upon, the honest and the designing, unembarrassing to the one, but frequently fatal to the schemes of the other.

* [138] That the doctrine of part-per

formance is settled upon a series of authorities,

*But in deciding these cases of part-performance, the courts have sometimes, and more especially the late authorities, disclaimed the doctrine of admitting it simply as a proof of the existence of the agreement, to the effect of dispensing with the necessity of the proof required by the statute, viz. a writing signed. They have placed their decisions wholly on the ground of fraud-fraud in resisting the completion of an agreement partly performed; with what consistency of principle may be a subject of speculative inquiry, but the doctrine is settled upon the basis, both of approving and reluctant authorities. But the reason on which this relief is professedly founded, viz. the fraud in seeking of part-per

but with some qualifications.

That the acts

formance must be in prejudice of

(67) Where there is a written agreement wanting only the signature the party of the parties, this effect given to part-performance, stands on a prin- performing ciple of much greater consistency; for, in such case, the terms are them. ascertained, and there is an object of reference for the part-execution

to be construed by

* [139]

shelter under the statute, from the obligation to complete a contract partly executed, seems to require that the party calling for such completion, should be the one who has executed the partperformance, and that the nature of the part-performance should' be such as to produce a manifest prejudice to the acting party, unless the agreement be fulfilled on the other side. Thus, in the recent case of Buckmaster v. Harrop,(e) before the present Master of the Rolls,(ƒ) where a part of the price had been paid by the vendee, and the vendor had received no prejudice, it was held that the ingredient of fraud was wanting as to the vendor, who, therefore, could not compel the execution of the contract by the vendee on the ground of his own acts. "If, said his Honour, the vendee had been let into possession, that would have been an act by which he might have had a prejudice. He added, that he was aware that there were cases wherein acts done by the defendant, were made a ground for compelling him to perform the agreement; but that it was difficult to bring those cases to bear: for to what do such acts amount, when there is no prejudice to the plaintiff? Only to proof of the existence of an agreement. The existence of the agreement may be put out of all doubt by the acts; but the objection upon the statute, that the agreement is not in writing, remains where it did. The court does not profess to *execute a parol agreement merely because it is satisfactorily proved. His Honour then cited the case of Whaley v. Bagenal,(g) which being before the House of Lords, must supersede the authority of every other case, in which various acts had been done, implying that the party had sold the estate, and did not consider himself any longer as the owner of it. But it was held, that the acts done did not entitle the plaintiff to have the contract specifically performed.”

In the case of Whaley v. Bagenal, the application for a specific execution of the contract was made by the party by whom the acts were not done, against the party performing them, and was cited by the Master of the Rolls to prove the principle upon which the case of Buckmaster v. Harrop, was decided by him, i. e. that the court will compel a specific performance of a contract, not in writing, in behalf only of the person by whom the acts of part-performance were done, and who may thereby receive a prejudice if the whole is not performed; and not on be(e) 7 Vez. jun. 341. (f) Sir Wm. Grant. (g) 6 Bro. P. C. 45.

acts of partperformance.

half of the other party, who seeks to avail himself of such acts of part-performance only for the purpose of evidencing the contract. But it may be questioned, whether the case of Whaley v. Bagenal, affords to this particular doctrine any confirmation; for the acts done by the vendor in that case, do not, according to the best authorities, seem to have been such as would have amounted to a part-performance, so as to have entitled even the party performing them to the assistance of the court, in compelling the completion of the purchase by the vendee. He deliver- Preparatory and ancillary ed to the vendee his rent roll, altered and dated by himself in his acts are not own hand writing. He also delivered his title deeds to the vendee's agent, to be compared with the rent roll; and laid an abstract of his title and case thereupon before counsel, in which it was stated, that the vendee had agreed with him for the purchase of these lands, at 21 years' purchase. He likewise gave to the vendee a list of the debts which affected the estate, and authorised him to *apply to the creditors; to several of whom, and to [140] other persons, he was charged by the bill to have written letters himself, informing them that he had agreed to sell the estate to the plaintiff, at 21 years' purchase. The tenants were sent by him to treat with the plaintiff as owner of the estate, for renewal of leases, and for liberty to cut down timber. And with a view to prevent the effect of an elegit against himself, he produced evidence before a jury, that such agreement and purchase had been made. These were acts by which the party doing them might have received some prejudice, but it may be doubted whether they could be considered as in any degree an execution of the contract; they were evidence of a contract, but not such evidence, as the statute requires. The House of Lords, therefore, would probably have given the same judgment of dismissal if the bill had been filed, and the appeal made by the party himself, by whom those acts were done. For it seems that the true doctrine

is, that the acts to be such as will constitute a part-performance, i. e. must appear to be done with a direct view to perform the agreement, and tend inceptively towards its accomplishment, (68) and must also be in prejudice of the party performing them.(h)

(h) See the same doctrine in Gunter v. Halsey, Ambl. 586.

(68) In Lacon v. Mertins, 3 Atk. 4, it was agreed by Lord Hardwicke, that the act of part-performance must be such an act done, as

But that the acts must appear to be done with a

direct view to performance of the agreement. Et vide note

infra.

*By the abovementioned case of Buckmaster v. Harrop, it seems to have been well settled, that before the heir can insist on performance of a contract for the purchase of land out of the personal assets, the agreement must appear to have been binding upon the parties contracting, so as to vest an equitable title in the ancestor before his death. As the case comprises some important points relating to this subject, a short statement of it will be useful to the purpose of explanation. Certain estates were offered for sale at an auction, in four distinct lots, and by distinct particulars. F was the best bidder; and offered to pay the deposits, 10 per cent, and the auction duty to Wright, the auctioneer, who was also the vendor; but W declined receiving either, alleging that it was late, and that he had several miles to travel but he told F he would lay down the money, and would settle with him another time, to which F agreed; and the auction duty was accordingly paid by W. By the conditions of sale, the purchaser was to have possession of lot 3 immediately, and of the other lots at Michaelmas next: paying the remainder of the purchase money, upon the execution of the conveyance, on or before the 29th of September. F soon afterwards paid W the amount of the auction duty; and sold the crops of hay, grass, and oats then growing on the premises, comprised in lot 3, to B, who afterwards took possession of the premises. An abstract of the title was sent to the attornies of F, about the 15th of September,

it appears to the court would not have been done unless on account of the agreement. But this does not seem to be a sufficient agreement of the act of part-performance, which, according to the case of Buckmastero. Harrop, considered at large in the text, and many other good authorities, ought to be a step towards the execution of the contract. According to which more correct understanding of the nature of an act of part-performance, the Master of the Rolls, in the last-mentioned case, would not allow the payment of the auction duty to be a part execution; which, nevertheless, was an act fully answering to the terms of the description (which probably was not meant to comprise all, but only to denote one of its requisites) given in the above-mentioned case of Lacon. Mertins; for it certainly would not have been done unless on account of the agreement. Mr. Ambler's description of a proper act of part-performance, vide 2 Bro. C. R. 561, comes nearer to the present more correct notion of it. "It must be something done as owner of the estate, and which the party would not have done, had not he considered himself in that light."