McCarger v. Rood

By the Court, Crockett, J.: The action is to compel the specific performance of a parol agreement, whereby the defendant undertook, as is alleged, to execute and deliver to the plaintiff a written lease for certain lands for a term of two years. The plaintiff alleges that, relying on the promise of the defendant to execute the written lease, he entered upon and cultivated the land, and has in all things performed his share of the agreement; but that the defendant refuses to execute the written lease, and in several particulars has violated the terms of the parol agreement. The Court below found the facts to be substantially as alleged by the plaintiff, and entered a decree requiring the defendant to execute and deliver the written lease. The defendant appeals from the judgment and from the order denying his motion for a new trial. That a Court of Equity, in proper cases, will enforce the specific performance of an agreement whereby a party undertakes to execute and deliver a written contract, or other instrument, is a familiar principle in equity jurisprudence, and has been frequently applied to the execution of leases. Under sections 8 and 12 of our “act concerning fraudulent conveyances and contracts,” every contract for the leasing of lands for a longer period than one year, and every agreement which by its terms is not to be performed within one year is void, unless in writing. But Section 10 provides that that “nothing contained in this chapter shall be construed to abridge the powers of Courts to compel the specific performance of agreements in cases of part performance of such agreements.” That part performance takes a parol contract out of the operation of the statute of frauds is too well settled in this country and in England to require further comment. In this case, the Court finds, and the proofs show, that the plaintiff performed the contract on his part; but that the defendant has refused to execute the written lease as he agreed to do, and has violated the contract in other particulars. The plaintiff has no adequate remedy at law for the refusal of the defendant to execute [142]the written lease, and is entitled to have this part of the contract specifically performed.

The facts offered to be proved by the witness, Bidwell, were properly excluded. At most, his testimony in connection with other evidence already in, or proposed to be offered, would only have tended to show that in some particulars the plaintiff had not farmed the land in the most judicious manner; but would not have tended to prove that there had not been such a part performance of the contract as to take the case out of the statute of frauds.