CH. 11. New. on Con. 170, 171.-Clerk v. Wright, 1 Atk. 12, 497.-2 Ch. Ca. 164. 1 Eq. Ca. Abr. 20.2 Com. D. 333 to 352, & 135.-1 Vern. large, and must contain the certain date of a contract; for if uncertain in material parts, a door is open to fraud and perjury, the real evil the act was made to guard against, and there may be as much room for perjury in proving a vague contract that exists, as in setting up one that never existed. A contract's merely being in writing is no security against fraud and perjury, if there be no certainty in it; but the letter may refer to a paper not signed. 3 Bro. C. C. 161, and 318 and 149; New. 167, 168, 169; 4 Mun. 77. ART. 9. Parol agreements as to lands &c., in equity. 1. These are executed in equity in several cases. On these Rep. in Chan. principles the intent of the act is to prevent fraud and perju2 Ch. Ca. ries; and whenever the facts are to be ascertained by confes472.-Bunb. sion, possession, &c., as that such agreements may be carried into effect, without danger of frauds and perjuries, a court of equity will execute and complete them. It is not the intent of the statute "to vacate bargains fairly and honestly made;" 341-New hence equity will enforce them. 65, 94.Ambl. 586.2 Freem. 268. -7 Ves. on Con. 167. -Prec. Ch. 374, Symondson v. Tweed; 208, Vaughan v. Morgan.Cooper's Pl. '255, 256, the part perform ance must be of a substan tial part; 256 statute waived.New. on Con. 172, 173, 175.Pow. on Con. 296.-Prec. Chan. 519--4 Ves. jun. 720. § 2. When the plt. in chancery states the substance of his case in equity, in his bill there, and the material parts of the agreement, and the deft. in his answer admits the facts stated in the bill, this takes the case out of the mischief pointed out in the act; for when the agreement is confessed in writing by the deft., there "can be no danger of perjury from a contrariety of evidence," and the rule is the same in courts of law as in courts of equity. All the evils the legislature meant to prevent by passing the act, are thus avoided, and it does not prescribe any particular time when the contract or agreement, shall be put in writing, but the agent's drawing the writing is not equal to his principal's signing. and $3. When the parol agreement has been partly executed, one party has incurred expense in improvements, if the terms of 66 agreement can be made out satisfactorily to the court, the agreement, though resting on parol evidence, will Ambl. 586.- be decreed," though a variety of evidence be adduced in the 3 Ves. jun. cause. As if the lessee by parol lease of land for many years, 378-2 Vern. has begun to build, his agreement shall be completed, for the on Con. 179, lease is part executed on his part, and the lessor shall not 180, 181.- avail himself of his own fraud, and get the lessee's improvements from him. Sugden's Vendors &c. 85, but to make one guilty of fraud he must have notice. 627.-New. Pow. on 301.-1 Vern. § 4. When possession is given, in pursuance of the agreeCon. 300, ment, this is so far a performance as takes it out of the statute, 363, Butcher though the buyer has not laid out monies on the premises. As v. Stapeley. where A seised of lands, agreed with B to sell them to him, and a short note was drawn up of the agreement, but not signed by 301.-2 Com. D. 337, 338; also 2 Vern. 455.-Prec. Ch. 519. Pow. on either party, and soon after the agreement B put his cattle in, and made encroachments on A's other lands. A then sold the premises to D, but the agreement with B was decreed, for when possession was delivered according to the agreement, the bargain was executed. And in this case it was also held, that taking possession under the agreement, was notice to subsequent purchasers, and no action can be supported against B for the profits of the lands. But the act done in part performance must be such as would not have been done, unless on account of the agreement, otherwise it is not evidence of it. 2 Vern. 455, Pyke v. Williams; 2 Stra. 783; Bunb. 94; 9 Mod. 37; 18 Ves. jun. 328; 2 Ball & Beatty 343, Givens v. Calder; 2 Desaus. Ch. R. 171; 1 do. 350; 2 Day's R. 225, Toote v. Midleott; 1 Ball & Beatty 393; 2 Dow 559; 5 Bin. 199. § 5. When earnest is paid, an action at law may be supported for damages for non-performance, though there be no remedy in equity, as by the payment of earnest the agreement is partly executed, the property is changed, and a right to it is vested in the purchaser. 1 Bac. Abr. 74, Sansum v. Butler. § 6. Generally in confirmation of the principles thus briefly stated in this article, as to those part performances of parol agreements which do, or do not take them out of the statute of Frauds, 29 Ch. II. re-enacted in many of our States with some variations, it may suffice at present to refer to some other late chancery reports, especially those of Wheaton, Johnson, and Munford; some late cases in Massachusetts, Pennsylvania, and South Carolina, and a few very late English cases, mostly abridged in several parts of this work. 7. As to part performance of such agreements by paying a part of the consideration money, it may be observed, that on a careful view of the authorities, it is clear that paying a small part does not take the case out of the statute of frauds; and that if a considerable part of it be paid, there is no settled rule yet adopted, but all depends on circumstances. Generally on paying a small or considerable part of the consideration money, the result is, a remedy, an action at law for money had and received, or for money paid, to recover back the part paid, or by a suit in chancery to the same purpose; the one or the other according to circumstances; and whether an action at law, or a suit in chancery is to be resorted to, is often a question of some difficulty. Often equity will decree monies to be repaid, when an action at law is not maintainable, for want of legal evidence, or some other cause, and often when an action can be supported, equity will not interpose, and in our system usually cannot, if the right of action be clear. As to the action CH. 11. Art. 9. CH. 11. see Ch. 32, a. 4, s. 20.-Chancery Cases, Ch. 225, a. 6, s. Art. 9. 25, &c.-2 Eq. Ca. Abr. 46, Pl. 12. It follows, whether a party sues at law or in chancery, it is often material he have a general knowledge of the principles of proceeding in both. Hence, in bringing the action of assumpsit for money had and received, monies paid or lent, some general attention must be paid to chancery cases. As to cases of part performance of parol agreements, see Syler's lessee v. Eckhart, 1 Bin. 378.-Smith v. Patton's lessee, 1 Serg. & Rawle 80.-Billington's lessee v. Welsh, 1 Bin. 125.-Trame v. Dawson, 14 Ves. jr. 386.-[Tothil 85, 135, 206, before the statute.] As to paying a small or considerable part of the purchase money, a matter so uncertain, see Butcher v. Butcher, 9 Ves. jr. 282.-Thompson v. Tod, 1 Peters' R. 388.-Bell v. Andrews, 4 Dallas 152.-Clinan v. Cooke, 1 Scho. & Lef. 22 and 123. On the whole it appears, though not clearly, that merely paying purchase money does not take the case out of the statute. § 8. A fact misstated by mistake in a writing, how corrected. May be by parol testimony, as Ch. 193, a. 2, s. 22, &c. So by verdict on an issue out of chancery, as where the parties agreed to two months' notice, by mistake written six months; on a bill filed, a jury's verdict was taken, which found the agreement was two months, and decree accordingly. Dr. Olliffe v. the South Sea Company, 5 Ves. jr. 601, cites 2 Ves. 377, and refers to Pimber v. Mathers, 1 Bro. C. C. 52. See the word mistakes in the index, also surprise. Cases in which mistakes in the written agreements have been corrected, or not, by extrinsic evidence, 3 Hen. & Mun. 399 to 435, Tabb & al. v. Archer & al. A. D. 1809, wherein are cited most of the English cases on the point, but no American cases, except a few in Virginia. Harwood v. Wallis, 2 Ves. 198.-Coldcot v. Hide, I Ch. Ca. 15. In Hesse v. Stevenson, 3 Bos. & P. 365, 578.-Young v. Young, 1 Dick. 295, 303, 304.-Rogers v. Earle, 1 Dick. 294.-Rob v Butterweck, 2 Price 190; in these and many other cases the principle has been recognised, that parol evidence may be admitted to correct mistakes in written instruments; but usually with much caution. 9. If these be made contrary to the intention of the parties merely to avoid a forfeiture, they may be corrected by parol evidence. Harvey v. Harvey, 2 Ch. Ca. 190.-Stratford v. Powell, 1 Ball & Beatty 1. 10. But if the parties omit any provision in a written instrument as being illegal, and trust the honour of each other, they must abide by it. 1 Bro. C. C. 92. Сн. 11. Art. 10. ART. 10. How far parol agreements can affect written ones. $1. In applying the law, parol agreements are not so totally void, as not to be let in, both by courts of law and courts of equity, to controul written ones on the same subject; they are let in Pow. on Con. as circumstantial evidence to controul the latter, to prevent 294, 295, Legal v. Miller, the fraud taking place, which might arise from insisting on Higginson v. something in that written one, which deprived the party of the Clowes. 15 Ves. jr. right and advantage of detecting the fraud, as a subsequent 516.-Scho. parol agreement on the same subject between the same parties, & Lef. 35, varying or discharging their former written one. The reason 123.-See this subject seems to be, the statute was not so much made to prevent the more in detransfer of rights and interests in lands or real estates, by tail, Chapters parol agreements; but mainly to prevent the frauds and per- 32 and 93, juries that might follow; and therefore, like the acts of limi- jr. 516.tations, grounded mainly on principles of policy and conven- 1 Phil. Evid. ience, as seeing the mischief, not in the parol transfer itself, as won a thing among honest men; but in the fraudulent and false use, Con.204,211, bad men might make of such parol contracts. Clinan v. Cook. Rich v. JackSo parol agreements are admitted to rebut an equity; as where a plt. in his bill demands a specific performance of a written agreement, the deft. is allowed to prove by parol, that agreement is discharged, or is not the true one. Sugden's Ven. 111, 112. 510, 511, &c. -New. son, Walker v. Walker. § 2. This statute of March 10, 1784, respects lands only, 2 Atk. 98. and not goods. The main occasion is, questions as to lands may arise at very distant periods of time; not so as to goods, for several reasons. The statute makes these interests in lands, created by parol, only estates at will; and forbids their transfer by parol contracts; and makes these void, and says no action shall be maintained on them. As they cannot be the ground of a suit they cannot be used, unless as having an equitable effect in doing justice. On a bill in equity to enforce the execution of a written agreement, it does not appear to be contrary to the statute, to use a parol agreement clearly proveable between the same parties, and on the same subject, operating to controul the written one, whenever it may tend to do injustice. And so in an action on such written agreement for damages, the quantum of which must ever be a matter of equity and conscience, it does not appear to be against the statute, to let in such parol agreement in fixing this quantum. The statute says it shall not be the ground on which to maintain an action; but it would be a rigid and hard construction of the act, to say this parol agreement should not be used as circumstantial evidence in a case, when clearly tending to justice and equity. How far parol evidence can control written, on the common law principle, is another matter; the settled principle seems to be, that parol shall not contradict, but CH. 11. Art. 11. See Ch. 93. Halfpenny v. 2 Vern. 373, may explain written evidence at common law. But when a statute denies to parol evidence its common law capacity to be the ground work of an action, it does not follow that it is not to be used as circumstantial evidence in a suit on written evidence in the same case, when justice and equity may require it. Evidence inadequate in itself to support an action, is often admissible in equitably fixing the quantum of damages, or in measuring justice between parties in equity. 3. The principle seems to be, that equity will not suffer a party to plead the statute of frauds, to cover his own frauds. As where a marriage treated of between the plt. and deft's. on Con. 298. daughter, a written agreement was made and signed by the plt., and delivered to the deft. to be signed by him; this he refused to do, being dissatisfied with some parts of it, not very material. He, however, permitted the plt. to court and marry bis daughter, and made no objection till asked to pay the por2 Vern. 322, tion. Under these circumstances the master of the rolls decreed Wankford v. a specific performance, considering the deft's. conduct as Fotherly, cited New. on founded in fraud. On the same principle was founded the Con. 165, 179 decision of Wankford v. Fotherly, 2 Freeman 801. There24 Cranch. fore to prevent such frauds, parol evidence is let in. Held, if A agree under seal to do certain work for B, and does part, and B prevents his finishing it, yet A must sue on the writing. 239, Young v. Preston. 3 Co. 25 to 36, Buller v. Baker. ART. 11. Agreements waived. On a special verdict in trespass, it was held: 1, that if land be given to baron and feme in fee, or in tail, and he dies, she cannot divest herself of the freehold by any verbal waiver or disagreement in pais, and before entry by her. So if before entry she says, by words in pais, she agrees to an estate, yet she may waive this in court; for a verbal agreement has no effect in law in such a case; otherwise, if she enter and take the profits. Second, if a man take a distress for one thing, he may in court avow for another. Third, an estate is made to husband and wife in tail, he dies; dower by word is assigned to her, which she accepts, but adjudged, that this her refusal of the estate of inheritance, and accepting dower in pais, should not divest the freehold out of her. Fourth, a joint tenancy is made to four men, and delivery to three in the name of all, and after seisin was given, the fourth came and saw the deed, and said he disagreed; yet it was held, that this disagreement in pais by word did not divest the freehold out of him. Fifth, if one enters, and disclaims afterwards a part, he remains in toto, till disagreement in a court of record. Sixth, lands are given in tail to baron and feme, he aliens them to the use of him and his heirs, and devises them to his |