Adams v.Townsend , 42 Mass. 483 ( 1840 )

Dewey, J.

The contract, upon which the plaintiff seeks to recover in the present action, is a parol promise to convey an interest in land, and is clearly within the provisions of the then existing statute of frauds, St. 1783, c. 37, § 2, and the Rer Sts. c. 74, § 1. But it is contended, that although an action could not have been maintained on this agreement, if It had remained merely executory, and in no part performed by either party, yet that under the circumstances which attend this case, it may be now enforced, upon the ground that part performance of such an agreement takes the case out of the operation of the statute. Such a doctrine has, under proper limitations, often been recognized in the courts of equity, where it was required m furtherance of justice and to prevent manifest fraud ; but it has obtained no permanent sanction as a principle of jurisprudence m the courts of law. It was repudiated by this court, as early as the case of Sherburne v. Fuller, 5 Mass. 138, and in the subsequent cases of Kidder v. Hunt, 1. Pick. 328 ; Griswold v. Messenger, 6 Pick. 517 ; and Thompson v. Gould, 20 Pick. 134. A similar rule has prevailed in the courts of New York; Jackson v. Pierce, 2 Johns. 223 ; and in the courts of Maine. Freeport v. Bartol, 3 Greenl. 340. Norton v. Preston, 3 Shepley, 14. In the English courts, a similar doctrine was held in Rondeau v. Wyatt, 2 H. B. 63, and Cooth v. Jackson, 6 Ves. 12 ; Lord Eldon, in the case last cited, holding a different view of the law on the subject, from that which had been intimated in the earlier case of Brodie v. St. Paul, 1 Ves. Jr. 326.

Several of the cases above cited will be found to have presented strong equitable claims for the interposition of the' court, and to have been cases where the defendants had received benefit, to a very considerable extent, from the execution of the contract by the plaintiffs ; but the court nevertheless maintained the doctrine, that damages could not be given at law for the nonperformance of a contract to convey lands, which was not in writing ; and that it would not avail, though a part performance was shown, even if it appeared that the party was remediless, if he could not resort to his action. The statute is plain and direct in its terms, and it is the misfortune of the party, for which this court can give no relief, if he has failed to acquire the evidence which the law makes necessary to enforce his contract, or to authorize a recovery in damages for the breach of it.

The case of Davenport v. Mason, 15 Mass. 85, has been sometimes supposed to sustain a different doctrine upon this subject. But it will be found that the remarks of the court, having that bearing, are mere obiter dicta. That case was decided upon other sufficient grounds, and has not been- understood by the court as an authority for sustaining the principle contended for by the present plaintiff. Several more recent decisions by this court, in the cases already cited, are certainly clearly adverse to such a view of the law on this subject.

The contract, relied upon by the plaintiff, being thus within the statute of frauds, he has established no legal right of action, and must therefore become nonsuit.