Burns v. Daggett , 141 Mass. 368 ( 1886 )

W. Allen, J.

There is no sufficient memorandum in writing, as required by the statute of frauds, Pub. Sts. c. 78, § 1, cl. 4; and the only question is, whether there has been such part performance of the oral contract by the plaintiff as to entitle him to a decree against the defendant for specific performance.

The only part performance relied upon is the occupation of the premises, and the making of repairs and improvements upon them. These do not of themselves constitute such part performance as to do away with the statute. To have that effect, the occupation of the premises and the expenditures upon them must have been induced by the contract, and in reliance upon its performance, and such that adequate compensation could not be made for them by the defendant except by the conveyance of the premises, so that it would be fraudulent in him to withhold a conveyance, and he would be estopped from setting up the statute of frauds against the plaintiff’s demand for a deed. Glass v. Hulbert, 102 Mass. 24. Potter v. Jacobs, 111 Mass. 32.

The agreement was for the conveyance of two acres of land and a house for $700, $10 to be paid each month and annual interest on the balance till all should be paid; and the plaintiff was to make necessary repairs on the house and pay the taxes. The agreement was made in 1871, and the plaintiff then went into possession, and continued the occupation, without interruption, until 1881, and in that time spent about $100 in repairs on the house, and set out a few fruit trees and vines, and cleared off bushes, and improved a small piece of land, at slight expense. The master found that a reasonable rent for the premises was $7 a month. Up to April 16, 1881, both parties appear to have been acting under the oral contract, although there seems to have been some misunderstanding as to its terms. The plaintiff had paid to the defendant, besides the taxes and the $100 for repairs on the house, about $550 on the contract debt, $400 of which was for interest and the rest on the principal of $700, and had had the use of the premises, worth, at $7 a month, over $850. Under these circumstances, the defendant went upon the. premises in April, 1881, with a surveyor, for the purpose of surveying the land included in the contract, and a disagreement arose between the parties as to the lines of the land agreed upon. The plaintiff then told the defendant that he would have nothing more to do with the place, and all he wanted was that the defendant should pay him what he owed him; and the defendant told him he would do so whenever the plaintiff would leave the house. The plaintiff made no further' payment, and there was no further communication between the parties, the plaintiff continuing to occupy the premises until December, 1881, when the defendant entered upon the premises and constructed a road through them. The plaintiff then objected to the making of the road, and demanded a deed, but made no tender of payment. After the survey was completed, in April, 1881, the plaintiff expressed himself, but not to the defendant, as satisfied with the lines run, and afterwards built a fence, at a cost of $25. In November, 1882, the defendant tendered to the plaintiff the amount he had paid on the contract above the interest, and requested him to quit the premises.

These facts do not show such a part performance of -the contract by the plaintiff as to entitle him to a decree for specific performance. It is enough to refer to the cases of Glass v. Hulbert, and Potter v. Jacobs, ubi supra. The principles upon which the acts of a party give him an equitable right to enforce a contract which the statute says shall not be enforced by action, are fully considered in the former case, and practically applied in the latter. In the latter case, the oral contract was made in 1868, by which the defendant agreed to convey a lot of land for '$500. The plaintiffs went into possession, cultivated and improved the land, and erected a house upon it, which they occupied. In December, 1870, when the plaintiffs were proposing to place a building upon the land, a difference arose between the parties as to a restriction which formed part of the contract, ’and it was finally agreed that the defendant should give a deed without the restriction, in consideration of the additional sum of $100, and the plaintiffs proceeded to move the building upon the land, and made expenditures upon the premises to the amount of $1700, and made several payments on account of the purchase money. All this was with the knowledge and consent of the defendant, and, by inference, with the knowledge that it was done by the plaintiffs in expectation of receiving a deed. The defendant, in November, 1869, executed a deed, which was shown to the plaintiffs, and which contained the restriction which the plaintiffs desired removed. About January 1, 1871, one month after the change in the contract doing away with the restriction, the defendant executed a deed and tendered it to the plaintiffs on condition of the payment of the amount claimed by the defendant to be due. The plaintiffs denied that there was as much due as was claimed by the defendant,, and made no tender or payment after January 4,1871. The amount then due was $244.80, which was materially less than was claimed by the defendant. Within a fortnight after tendering the deed and demanding payment, the defendant refused to make a conveyance on any terms, and commenced legal proceedings against the plaintiffs. Upon these facts, it appeared that the plaintiffs were induced by the defendant to do acts, in reliance upon the performance of the contract, for which there could be no adequate compensation if the contract should not be performed; and the court held that “ there was possession taken, accompanied by part payment and such change of position that the purchasers cannot now be restored to their rights if the contract be abandoned. The refusal to complete it is in the nature of a fraud, and the defendant is estopped to set up the statute of frauds in defence.”

The facts in the case at bar afford no such conclusion. After the plaintiff had enjoyed the use of the premises for nearly ten years, and had made no improvements of any amount, and expended but $100 for necessary repairs, and had paid but a small portion of the consideration, and in all less than the value of the use and occupation, so far from having done acts for which he could have no redress if the contract were abandoned, it may have been for his advantage that the parties should not be held to the contract. If he could receive back the portion of the principal of the purchase money which he had paid, and be relieved from further payments, he would have received, in the value of the use of the premises, more than double the whole amount he had expended. Whether the conversation of April 16, 1881, was in itself a rescission of the contract is immaterial; in connection with the circumstances, it is conclusive that the plaintiff had not then done acts under the contract for which he could have redress only by carrying out the contract, and the defendant’s acquiescence in which would make the defence that the contract was not in writing fraudulent. After that, the plaintiff continued to occupy the premises for a year and a half, but made no payment, or offer of payment, of the consideration, but expended $25 for fencing. When the- defendant, eight months after the conversation of April 16, having heard nothing from the plaintiff, entered upon the premises, it is not at all clear that the act was contrary to an existing verbal contract; but, if it were, it was not such a fraudulent or wrongful violation of it that he would be estopped to set up its invalidity. The subsequent occupation of the premises by the plaintiff for a year, without tendering any part of the consideration, or making any expenditure upon the place, though accompanied with demands for a deed, does not present the conduct of the defendant in a fraudulent aspect, and the tender by him of all that the plaintiff claimed to be due on the rescission of the contract shows that no wrong incapable of compensation was done to the plaintiff.

The facts found by the master, if they do not show that the use and occupation of the premises were full compensation and indemnity to the plaintiff for all that he did upon them, certainly fail to show any equity in him, in consequence of part performance of the verbal contract, sufficient to override and set aside the statute of frauds.

Bill dismissed.