Congdon v. Darcy
46 Vt. 478
Vt.
1874
Check Treatment

The opinion of the court was delivered by

Ross, J.

The referee has found that the contract for the construction of the house was, by the agreement of the parties, to be reduced to writing. It was not a perfected contract so long as the acts of reducing .it to writing and of signing it, remained to be done. While these acts remained to be performed, the contract was incomplete and inoperative to bind the parties. Until these acts were performed, either party had the right to refuse to enter upon the performance of the contract. Paige v. Fullerton Woolen Co. 27 Vt. 485. The'finding of the referee that by the previous agreement between the plaintiff and Kent and the defendant, it was optional with the defendant whether he would have the contract put in writing, cannot avail the plaintiff, inasmuch as that agreement was abandoned because Kent refused to become a party to it. The agreement for the contract for a breach of which the'plaintiff seeks to recover, although relating to the same subject, and identical in terms with the agreement for the contract between the plaintiff and Kent of the one part and the defendant of the other part, differed from it in the parties thereto ; and hence, if reduced to writing, would have been a contract separate from, and independent of, the contemplated contract between the plaintiff and Kent and the defendant. The referee has found that the bill of timber and plan of the house, though they were made out by the plaintiff, were delivered to 'the defendant by Kent, while the negotiations were pending for the contract with the plaintiff and Kent for building the house. They, therefore, cannot constitute a part performance of the contract between the plaintiff and defendant, if it should be conceded that such a contract had been completed. Although they were made and delivered at the request of the defendant, they were made and delivered as a part performance of an anticipated contract, to which Kent afterward refused to become a party ; so that neither the plaintiff alone, nor the plaintiff and Kent jointly, could recover reasonable compensation for the performance of these acts. *484A party receding from negotiations and refusing to be bound by them, cannot recover for the performance of ácts which would have constituted a part performance of an entire contract which would have resulted from the negotiations if perfected. If they had been delivered by the plaintiff at the request of the defendant, they would not have rendered the contract operative between them, because the acts of reducing the contract to writing and of signing it, still remained to be performed, and, for that reason, there was no perfected, unwritten contract, which, by a part performance, could be taken from the operation of the statute of frauds. As the defendant refused to sign the contract when reduced to writing, if these acts had been performed pending the negotiations between them, 'the plaintiff could have recovered reasonable compensation for their performance ; not because they would have constituted part performance of a contract, but because they were done at the request of the defendant. In that case they would not have enabled the plaintiff to have recovered damages for not being allowed to erect the house, inasmuch as the defendant was never legally bound to permit him to erect the house. Hence the plaintiff caunot recover on the facts found by the referee. The plaintiff has filed a motiou to have the case sent again to the county court, and recommitted to the referee to find the further fact that at the time the plaintiff and defendant agreed upon the terms of the contract which was to be reduced to writing and signed by them, he furnished the defendant an additional bill of materials or lumber, which would be required in ■ erecting the house. If the plaintiff had proved this fact, and the referee had found and stated the same in his report, as we have seen, it would not aid the plaintiff to recover damages for not having been allowed to erect the house, as he had never completed the contract, so that he had the right to enter upon the erection of the house. The greatest effect it could have, would be to allow "the plaintiff to recover reasonable compensation for making the additional bill, which would, if the referee should find the fact as claimed by the plaintiff, be too trifling in amount to warrant a recommittal of the case to the referee..

Judgment of county court is : eversed, and judgment rendered on the report for the defendant.