Ballarb v. Bond, 32 Vt. 355

Ballarb v. Bond

32 Vt. 355 | Vt. | 1859

Poland, J.

The contract or promise upon which the plaintiff’s special count is founded-, being admitted by the demurrer to be wholly a parol undertaking, is clearly within the statute of frauds. The promise as stated was that “ he, the said defendant, would deed the said premises and give good title thereto to whoever the said plaintiff should sell the same to within the one year as aforesaid-.” A plainer case oí a Contract for the sale of lands Could scarcely be conceived.

The plaintiff claims to support his suit mainly upon the ground’ that it is brought to recover the price or consideration of the land conveyed by him to the defendant.

Notwithstanding the general terms of the statute of frauds, it has always been held that when land has been sold and conveyed to the purchaser, the seller may maintain an action to recover the price, though not evidenced by any Writing. But this is upon the ground that all of the contract which is required by the statute to be in writing, has been fully executed and performed, and that 'the promise to pay the money does not come within the statute. *359In the English courts they hold that unless the contract to pay the price is in writing, an action will not lie upon it, hut they allow the seller to accomplish the same thing, by an action of general assumpsit for land sold. But where the promise or contract for payment is itself one coming within the statute, as a promise to convey to the seller other lands, or to reconvey the same lands to the seller or to a third person, the saíne has never been allowed to be enforced.

This has been settled in this State by tile case of Hibbard & Wife v. Whitney, 13 Vt. 21. There the parties contracted by parol to exchange lands. The plaintiff conveyed to the defendant, according to the contract. The defendant conveyed to the plaintiff a portion of the lands agreed to be conveyed by him, but refused to Convey the residue. It was held an action could not be maintained on such promise and refusal. The same is fully sustained by the Cases cited by the defendant from Maine and Massachusetts. The plaintiff claims this case is taken ont of the operation of the statute by a part performance, but it s'eems to us not such a case 'of part performance as has been held to have that effect even in equity. The defendant had paid the full consideration he was to pay to the plaintiff and received a conveyance from him. The further contract was that if the plaintiff could find a purchaser who would pay more than the defendant paid the plaintiff, the defendant would deed to such purchaser, and that the plaintiff' should have half such excess of price. It seems wholly a distinct independent stipulation, as if he had agreed to reconvey to the plaintiff on the payment of a certain sum. If it could be regarded as a case of part performance, that does not commonly enable a party to sustain an action at law, but only for relief in equity upon the ground of fraud.

The plaintiff relies much on the case of Hodges & Wife v. Greene, 28 Vt. 358, as sustaining his case. He claims that case to establish that in all contracts for the sale of lands or any realty interest, required by the statute to be in writing, a tender or offer of performance by the seller, though refused by the purchaser, is such an execution of the contract as will enable the seller to recover the price by a suit at law. We fire aware that such an opinion has to some extent obtained from that case as reported in *360the 28th Vt. The case was undoubtedly correctly decided, and the same case has since been again before the court, and again decided on the same facts for the plaintiffs, but the decision was put upon much narrower grounds than in the 28th. The defendant had made a parol purchase of the pew, and under that went on and wholly destroyed the pew and its identity in repairing and remodelling the meeting house. He had thereby received all the benefit and advantage he possibly could have by the purchase-, and a deed of the pew could not vest in him anything more than he already had, so the contract was fully executed. It was regarded like a parol sale of growing trees, or a building on the vendor’s land, which are so connected with the realty as to require a writing to make a contract to sell valid; still after the purchaser has gone on and removed the trees or building, and converted them to his own use, he cannot object to paying the price, because no deed, or conveyance, or writing, could more fully execute the contract of sale. The plaintiff’s claim to recover under his general counts for his time and expenses in finding a purchaser of the land conveyed to the defendant, we think, has no legal ground to stand upon. He was not acting for the defendant or as his agent-, nor under his employment. He was acting for himself and for his own benefit and advantage. If the defendant had deeded as he contracted to do, it is not claimed he was to pay for these services, so that the claim is merely for damages for his non-fulfillment of his 'contract, which contract we have seen could not legally be enforced, and if it could be, we do not see how the plaintiff could recover anything beyond the half of the additional purchase money, for that was all he was to receive if the contract had been fulfilled. It was never understood between the parties that the defendant was to pay the plaintiff for these services in any event, so that the relation of creditor and debtor never existed.

The judgment of the court below was correct, and the same is affirmed.