Wall v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.
56 N.W. 367
Wis.
1893
Check Treatment
Cassoday, J.

This case comes before us upon the pleadings and the findings and judgment of the court. These findings exclude from our consideration the contention apparently made in the trial court, to the effect that a part of the land covered by the contract was included in the plaintiff’s homestead, and that, as the contract was ■ not signed by the plaintiff’s wife, it could not be enforced against the land.

The statute declares, in effect, that every contract for the sale of any lands, or any interest therein, shall be void unless the contract expressing the consideration be in writing, and be subscribed by the party by whom the sale is to be made. Sec. 2304, IL S. The mere fact that the contract in question was only signed by the vendor does not prevent its enforcement against him and the land. Docter v. Hellberg, 65 Wis. 415. There can be no question but what it sufficiently expresses the consideration. The contention is that the wrriting was a mere _ option, without *57mutuality, and gave the company no interest in the land. But one having an option in writing for the purchase of land has an interest therein, within the meaning of the section of the statute cited, as well as sec. 2302, R. S. Telford v. Frost, 76 Wis. 172. Where the option is exercised by electing to purchase within the time prescribed, and entering into the possession of the land and expending money thereon, there would seem to be no good reason why such contract should not be enforceable. Kerr v. Day, 14 Pa. St. 112, 53 Am. Dec. 526.

It is contended, in effect, that under the statute cited it was incompetent for the parties to modify the written contract by parol; and hence that the court improperly enforced such contract so modified; and in support of such contention counsel seem to rely on Atlee v. Bartholomew, 69 Wis. 43, and Heisley v. Swanstrom, 40 Minn. 196. These cases are in line with the general rule that under the statutes cited an agreement for the sale of land, wholly or in part oral, cannot of itself be enforced in equity. But the statute also provides, in effect, that nothing contained in those sections “ shall be construed to abridge the powers of courts to compel the' specific performance of’ agreements, in case of part performance of such agreements.” Sec. 2305, R. S. This court has frequently held that the mere payment of a portion, or even the whole, of the purchase price, is not such part performance as to take the case out of the statutes. On the other hand, this court has frequently held that payment of any considerable part of the purchase price, and the vendee’s entry into possession and making valuable improvements thereon, constitute such part performance of an oral agreement for the sale of land as will take the case out of the statute of frauds and justify the enforcement of specific performance. McWhinne v. Martin, 77 Wis. 182, and the numerous cases there cited by Mr. Justice Tayloe. See, also, Lanyon v. *58Martin, L. R. 13 Ir. 297; Brown v. Sutton, 129 U. S. 238. So, where there has been such part performance by the vendee that it would operate as a fraud upon him to allow the vendor to repudiate the contract, the same will be enforced in equity. Paine v. Wilcox, 16 Wis. 202; Martineau v. May, 18 Wis. 54; Seaman v. Aschermann, 51 Wis. 678; Cutler v. Babcock, 81 Wis. 195. The underlying principle here applicable is well expressed by Mitchell, J., in Brown v. Hoag, 35 Minn. 375, where it is said: “He (the appellant) invokes the rule that acts relied on as part performance must be referable to and done in pursuance of the contract, and seems to assume that this includes only acts which were stipulated to be done in the contract itself and as a part thereof. We do not understand this to be the law. While the phrase ‘ part performance ’ is commonly used as a short and convenient statement of the general ground upon which verbal agreements regarding real estate are enforced, yet the whole doctrine rests upon the principle of fraud, and proceeds upon the idea that the party has so changed his situation, on the faith of the oral agreement, that it would be a fraud upon him to permit the other party to defeat the agreement by setting up the statute. Hence the term £ part performance ’ falls far short of expressing the whole doctrine and theory of courts of equity in this matter. The change of situation necessary to create this equitable estoppel must, of course, have been made in reliance upon, and in pursuance of, the oral agreement, and so connected with the performance of the contract that, from the nature of the case, the defendant should understand it was done in reliance upon his agreement. The acts done must be related to and connected with the contract, and the defendant’s performance of it. . . . But this change of situation is not confined to doing what the contract stipulated, — that is, ‘ part performance,’ strictly so called.”

*59As indicated in the foregoing statement, the company entered into possession, and after the company declared its option to purchase under the contract, and the written contract was modified by parol, the said company, relying thereon, constructed its road across said land, and expended a very large amount of money in performance or pursuance of such contract so modified. The mere fact that the court did not compel the defendant to pay for injuries caused by the plaintiffs own conduct is no ground for reversal. Nor is the plaintiff aggrieved by the defendant’s voluntary relinquishment of a portion of the land described in the original contract. The facts found by the court manifestly justify the decree entered.

By the Cowrt.— The judgment of the circuit court is affirmed.