McCarthy v. Pope
Synopsis
Statute oe Pbauds.—Where plaintiff made a parol contract for the purchase of land, and subsequently by parol agreed with defendant to permit him to become the purchaser in his stead, and in pursuance of this agreement and by direction of plaintiff the land was conveyed to defendant: held, that in an action to recover the value of the assignment, the defendant could not rely upon the Statute of Frauds.
Idem.—Although the statute requires a contract for the sale of land to be in writing, yet, if in pursuance of a parol contract the land is conveyed, there is nothing immoral about the transaction.
Considebation.—The assignment of a right is a valuable consideration to support a promise to pay its reasonable value, where the assignee obtains the benefit of such right.
Idem.—The assignment of the contract, and substitution of defendant instead of plaintiff, and the procurement of a conveyance to defendant, is the consideration of the above contract.
Coktbact.—Had the owner refused to convey to defendants, a conveyance could not have been enforced, and the contract would be inoperative. But the contract having been executed, the Statute of Frauds cuts no figure between plaintiff and defendant.
Assumpsit—will lie in the above case.
cited Foulke v. S. D. & G. S. P. R. R. Co. as construing Pixley v. W. P. R. R. Co. 33 Cal. 198, to the effect that where the statute declares that a writing is necessary to bind a corporation, it only applies to executory contracts. (To the same effect Patten v. Hicks, 43 Cal. 509; Emery v. Smith, 46 N. H. 155; Jones v. Hay, 52 Barb. 507.)
II. The defendant received value from the plaintiff.
The Court below held, as before stated, that because the plaintiff’s right to purchase was not in writing it was void; that being void there was nothing for the plaintiff to assign to defendant ; and that therefore there was no consideration for any promise, express or implied, from defendant to plaintiff, and the Court did so upon the authority of Mayer v. Child, 47 Cal. 142. We do not question the correctness of that decision. But it is totally inapplicable to the case at bar. In Mayer v. Child, the contract assigned was wholly executory, and it never was executed. The contract assigned to Child was a parol one for the purchase of one hundred shares of Pioche mining stock. But this contract was never performed. The person who owned the stock refused to part with it in pursuance of his' parol contract. Therefore, the person to whom the parol contract was assigned never got any benefit from it. How, in the case at bar, the person who owned the property performed his parol agreement. The person to whom it was assigned got all the benefit from it he ever hoped for. Richardson conveyed the property to the defendant “ in pursuance of his engagement to that effect with plaintiff.” In other words Richardson’s contract was executed. His contract was to convey to plaintiff or his assigns. He conveyed to plaintiff’s assignee. His contract was executed, and that is the difference between Mayer v. Child, and the case at bar. In the former, the contract assigned was never executed; in the latter the contract was executed.
The moment Richardson executed his contract the objection that it was not in writing was obviated. This is an elementary principle. It is fully illustrated by the authorities. (Remington v. Palmer, 62 N. Y. 33; Kratz v. Stock, 42 Mo. 354; Seaman v. Price, 10 Moore, 37; Trash v. Vinson, 20 Pick. 109.)
[564]That a contract within the Statute of Frauds is valid if performed. (Pico v. Cuyas, 47 Cal. 179; Adams v. Hormers, 62 Barb. 334, and various other cases.)
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