187 Pa. 371 | Pa. | 1898
Opinion by
The findings of fact and conclusions of law are so fully and clearly stated by the learned judge of the court below that we need not here repeat them. His decree sustains the bill which, though filed originally against appellant, another brother and two sisters, the last three formally of record, admitted the contention of plaintiff, and asked to be dismissed as defendants ; so, this appeal is by George D. Melloy alone, who assigns four
All the other assignments, directly or incidentally, are based on the court’s first and second conclusions of law, as follows:
“ 1. A part performance of an oral contract for the conveyance of an interest in real estate, takes it out of the operation of the statute of frauds, and enables a court of equity to decree a full and specific performance of such contract.
“ 2. The agreement between the complainant and George D. Melloy to settle the questions of surcharge and to withdraw the objections to the confirmation of the account of the administratrix, and the subsequent confirmation of the account by the court in pursuance of this agreement was such a part performance as enables the court to decree a specific performance of this agreement.”
To understand fully the nature of “ the part performance ” of the parol contract it may be well to notice the facts bearing on it. Rachel Melloy, the widow of John M. Melloy, the latter the father of these parties, had, on January 4, 1894, filed as administratrix of her deceased husband her account, showing receipts of over $30,000, and claiming credit of nearly $10,000. George D. Melloy, the son, this appellant, though not nominally the administrator, transacted all the business for his mother, and made up for her the administration account and filed it. To this account Mrs. Hancock filed exceptions, and sought to surcharge the accountant with considerable sums of money; besides, she claimed an equitable estate in a property on Twenty-third street. The account in the orphans’ court was called for audit, February 5, 1894, but because of the questions raised, the hearing was continued for two days, to facilitate efforts to compromise, and to avoid the publicity which would result from litigation. On the next day, the brother, represented by his counsel, and the sister, by hers, met at the office of his
Our decisions, and they are many, adopt the rule of these texts, as in Moore v. Small, 19 Pa. 466: “Every parol contract is within the statute of frauds and perjuries, except where there has been such part performance as cannot be compensated in damages.” And the United States Supreme Court follows the same rule, Riggles v. Erney, 154 U. S. 244: “ If the parol agreement be clearly and satisfactorily proved, and the plaintiff, relying upon such agreement and the promise of the defendant to perform his pail, has done acts in part performance of such agreement to the knowledge of the defendant — acts which have so altered the relations of the parties as to prevent their restoration to their former condition — it would be a virtual fraud to allow the defendant to interpose the statute as a defense, and thus to secure to himself the benefit of what has been done in part performance.”
So that, the only error the learned judge of the court below could have committed was in his inference, that Mrs. Hancock’s performance of the contract on her part had so altered the relations of the parties as to make it impossible to reinstate them in their former condition. One thing is clear, by the absolute confirmation of the account she could not surcharge the administratrix with the large amoimt she sought to have added to the debit side of that account. It is replied, that difficulty could have been obviated by George D. Melloy consenting to the open
An examination of all the assignments of error fails to detect anything calling for reversal. The decree is therefore affirmed, and the appeal dismissed at costs of appellant.