| Ga. | Mar 15, 1860
By the Court.
delivering the opinion.
The only question presented in this case, is : whether or not the Statute of Frauds is in the way of the specific performance prayed by Mr. Chastain.
1. In the first place, this case was never within the Statute of Frauds. The substance of the agreement, so far as that particular part of the land to which Mr. Chastain seeks a title is concerned, is that the Smiths would, as his agent, buy it for him. They did, in fact, buy it, but took a title to themselves. This title in their hands, was immediately af
2. In the second place, even if the agreement had, at first, been within the statute, we think it was error in the Judge to instruct the jury that the only part performance which could take it out of the statute, was possession of the land delivered to Chastain and the purchase money paid by him, and improvements made on it by him ; all done in pursuance, and upon the faith of the agreement. Now, the case made by Mr. Chastain was, that in pursuance and upon the faith of the agreement, he had contributed his professional services, worth seventy-five dollars, towards the acquisition of the title which the Smiths got, and that they were insolvent, having nothing out of wdrich to compensate him for those services, except only this very land which they were claiming to hold exempt from sale under execution, by virtue of the statute which allows a defendant in execution to hold a certain quantity of land exempt from sale. That is to say, the case is, that they having already received the benefit of his services, and being both unable and unwilling to pay him for them in money, now ask to be protected from their contract to turn over to him the fruit of those services, upon the ground that the contract was not in writing. This would be to convert the statute, which was intended to prevent fraud, into an instrument of fraud. Whenever there has been such a part performance as that the whole performance becomes necessary to prevent a fraud, equity will decree the whole performance; and whenever the parties can not be restored to their statu quo, nor adequately compensated in damages by avoiding the contract and turning them over to their action for damages, it would be a fraud to refuse to execute the contract, and equity will order it executed. Such would be the result of a refusal in this case. Mr. Chastain’s action for damages would be fruitless, because the Smiths are insolvent ;■ and the only possible mode of preventing them from making a fraudulent appropriation of his services without paying him for them, is by compelling them to execute the agreement on the faith of which the services were rendered.
Judgment reversed.