A Seaman v. Aschermann. CTION for specific performance. The head note states the facts. The defendants had judgment below. Flanders & Bottum, for appellant. Jenkins, Elliott & Winkler, for respondents. ORTON, J. The facts stated in the complaint make a clear case of a verbal agreement to execute a five-years' lease, fully performed by the plaintiff, and partly performed by the defendants. The only question presented is, can this verbal agreement under these circumstances be enforced? Aside from the above facts of performance, it is conceded that the agreement is void by the statute of frauds, and can neither be enforced in equity nor damages recovered for its breach in a court of law. That this agreement for or as a lease for five years, even under the circumstances stated in the complaint, is so invalid under the statute that the rents reserved thereby, or damages for the breach of the same, could not be recovered in an action at law, is perfectly well settled. Story Eq. Jur., § 757. It is only in a court of equity, if at all, that relief can be obtained, and that for specific performance, if performance is possible. The general principle by which courts of equity grant specific performance of parol contracts for the sale of lands or interests in lands is clearly stated by Mr. Justice STORY, in his great work on Equity Jurisprudence: "That they do however interfere in some cases within the reach of the statute, is equally certain. But they do so, not upon any notion of any right to dispense with it, but for the purpose of administering equities subservient to its true objects, or collateral to it and independent of it." Story Eq. Jur., § 754. The same learned author lays down more strictly the ground of equitable interference in such cases, as follows: "Courts of equity will enforce a specific performance of a contract within the statute, where the parol agreement has been partly carried into execution. The distinct ground upon which courts of equity interfere in cases of this sort is, that otherwise one party would be able to practice a fraud upon the other, and it could never be the intention of the statute to enable any party to commit such a fraud with impunity." And again, "Where one party has executed his part of the agree ment in the confidence that the other party would do the same, it is obvious, that if the latter should refuse, it would be a fraud upon Seaman v. Aschermann. the former to suffer this refusal to work to his prejudice." Id., § 759. In Potter v. Jacobs, 111 Mass. 32, these principles were applied to the facts of that case and relief granted, and Mr. Justice COLT states the doctrine as follows: "The plaintiffs acted under their supposed rights as purchasers of the property. What they did was consistent with the agreement proved, and can be referred to no other title or claim of title. They were induced to enter upon the execution of the agreement, and to do acts upon the faith of it, as if it had been executed with the knowledge and acquiescence of the defendant, for which there would be no redress if the agreement was defeated. There was possession taken, accompanied by part payment, and such change of position that the purchasers cannot 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 defense." To this expression of this true ground of equity relief are cited Glass v. Hulbert, 102 Mass. 24; s. c., 3 Am. Rep. 418; Fry on Spec. Perf., § 534; Adams Eq. 86. In Paine v. Wilcox, 16 Wis. 202, this court has laid down the same doctrine, as follows: "But verbal agreements for the sale of lands are enforced in equity when there has been such a part performance that it would operate as a fraud upon either party to allow the other to repudiate." The cases in this court in which this principle has been applied to parol agreements for the sale and conveyance of land, are too numerous to be cited, and the doctrine is too well settled to require further argument or authorities to sustain it. That the same doctrine is applicable to a parol agreement to execute a written lease, was held in Fery v. Pfeiffer, 18 Wis. 510. The following cases cited by the learned counsel of the appellant are clearly analogous and in point. Nunn v. Fabian, L. R., 1 Ch. App. 35; Dowell v. Dew, 1 Younge & C. (N. C.) 356; Wills ▼. Stradling, 3 Ves. Jr. 378; McCarger v. Rood, 47 Cal. 141; Wait's Act. and Def., 770, 777, 790, and cases cited; Rankin v. Lay, 2 DeG., F. & J. 65. See also, Frame v. Dawson, 14 Ves. Jr. 386. It is self-evident that this equitable relief must be mutual. If there has been sufficient execution or performance of the parol contract to entitle the lessee to enforce it, the lessor has the same equity, and both will be equally entitled to specific performance. It is said in Dowell v. Dew, supra, Seaman v. Aschermann. that Mrs. Bernhard, who had agreed to execute the lease, "at the time of her death was in a condition to have enforced the performance of the agreement in equity against him (the tenant) by reason of that part performance." In support of this general doctrine of equity, it may be said here, as was said by Chief Justice DIXON in Brandeis v. Neustadtl, 13 Wis. 152, that our own statute (now found in § 2303, R. S.) saves the jurisdiction of the court "to compel the specific performance of agreements in cases of part performance of such agreements." We are aware that in a very few of the States this doctrine is not upheld, but in England and in most of the States it is now undisputed. The facts stated in this complaint make one of the strongest and clearest cases for its application to be found in the books. The plaintiff was put to great expense to change and remodel the block of stores to make them suitable for the business of the defendants, and at their special instance and request, and in consequence and fulfillment of the agreement, and made out and executed and tendered the lease to the defendants for them to execute on their part; and the defendants went into full possession and enjoyment of the premises under said agreement, and for two years paid the plaintiff the rents stipulated in the agreement and the lease to be executed, and merely delayed, by sheer neglect and without refusal to execute the lease on their part. A stronger case for the exercise of this equity jurisdiction could hardly be made. The complaint stated a good cause of action, and the demurrer should have been overruled. The order of the Circuit Court is reversed, and the cause remanded for further proceedings according to law. Order reversed and cause remanded. 1. Conflict of law-bond assigned by foreign administrator.] A resi. 714. - damages for death of minor child.] A father at com. ADMINISTRATOR. See EXECUTOR AND ADMINISTRATOR. ADMISSION. See EVIDENCE, 624. ADOPTION. Comity.] A child having been legally adopted and thus entitled to in- ADULTERY. See CRIMINAL LAW, 378. AGENCY. 1. Collection by attorney through bank-appropriation by bank to attor on a debt of the attorney to the bank. The attorney becoming bankrupt, Contract-fiduciary relation.] A railway company, upon the application of 3. Execution of bond.] A bond phrased, "I promise to pay," etc., and not - 6. Negotiable instrument by public officer mode of executing.] A nego- - 6. Travelling salesman — evidence — custom.] A travelling salesman and 7. To sign note-signing by sub-agent.] A. authorized B. to borrow money See SALE, 369. |