Billingslea v. Ward

• Decision Date: 28 June 1870
• Citation: 33 Md. 48
• Parties: CHARLTON W. BILLINGSLEA, Executor of Richard Green and Others v. THOMAS WARD.
• Court: Maryland Court of Appeals

33 Md. 48

CHARLTON W. BILLINGSLEA, Executor of Richard Green and Others v. THOMAS WARD.

Court of Appeals of Maryland

June 28, 1870

Appeal from the Circuit Court for Baltimore County, in Equity.

The facts will be found in the opinion of the court.

The cause was argued before BARTOL, C.J., STEWART, BRENT MAULSBY MILLER and ROBINSON, JJ.

R J. Brent and Joseph L. Brent, for the appellants.

The alleged contract was not final and mutual. Both parties must be bound. Geiger v. Green, 4 Gill, 474; Mundorff v. Kilbourn, 4 Md. 463, 4; Stoddert v. Bowie, 5 Md. 18-34, 5, 6; Smith v. Crandall, 20 Md. 482-500.

It being apparent from the contract, as declared on, that Ward was not bound, it follows that he is not entitled to specific performance, unless he shows actual performance.

It is necessary for Ward to prove performance, because if his contract were in writing, its performance is the only consideration to sustain it; and if it be verbal, it requires performance to make it certain, and to entitle him to escape the statute of frauds. It will be noted that the bill does not set out that the agreement was parol, and hence the defendants had no notice that he intended to rely on a parol agreement, but inferred that it was written, as appears by their answer; but they nevertheless denied the existence of the agreement, and required strict proof of it, which is equivalent to a plea of the statute of frauds. Small v Owings, 1 Md. Ch. 363.

Conceding for the sake of the argument, that Ward did deliver lime and limestone to Green or on his order; yet, prima facie, that only implies a money indebtedness of Green to Ward; and some proof must be adduced to show that the lime deliveries were in part performance of the very contract set out. If those deliveries be referable to any other contract or agreement than the one set out in the bill, then they cannot be claimed as part performance of the contract. Frye on Specific Perf. sec. 387 and note.

The alleged deliveries cannot be regarded as acts done in part performance of the contract of sale. Canal Co. v. Young, 3 Md. 490; Mundorff v. Kilbourn, 4 Md. 462; Whitridge v. Parkhurst, 20 Md. 84; 2 Story's Eq. sec. 762.

Ward's possession is referable to his tenancy, and not to the agreement to purchase. 2 Story's Eq. sec. 763; Frye on Specific Perf. sec. 286 and note.

R. R. Boarman and A. W. Machen, for the appellee.

Bartol C.J., delivered the opinion of the court.

The object of this suit, which was instituted by the appellee, is to obtain a specific performance of a contract alleged to have been made by him with Richard Green, in his life time, for the purchase of a parcel of land situated near Texas, in Baltimore County, containing a valuable lime quarry.

The bill of complaint also prays for a writ of injunction to restrain the appellants, the executor and devisees of Richard Green, from prosecuting an action of ejectment, which they had instituted against the appellee for the parcel of land in question.

The alleged contract of sale is not evidenced by any writing as required by the statute of frauds, and the appellee seeks to take it out of the operation of the statute, by proving acts done by him under and in part performance of the contract.

The bill alleges that "the contract was made about or during the month of September, 1860; that the price stipulated as agreed to be paid by the appellee was about $8,616, the agreement being that he was to pay Green the same price which Green had paid or agreed to pay for it, and it was further agreed as part of the contract, that the appellee should have the privilege of paying for it in lime and limestone, to be furnished by him at a fair market price, in such quantities and at such times as Green should require them."

It is alleged in the bill that the appellee "under and in part performance of the contract took possession of the land with the consent of Green, and has continued in possession thereof, that he has expended considerable sums of money in working and improving the same. That in further performance of the contract he furnished large quantities of lime and limestone to Green, and to others at the request and upon the credit of Green, and that Green always as long as he lived affirmed said contract of sale, though no deed was ever executed by him to the appellee for the land." Richard Green died in May, 1861, eight months after the alleged contract.

The appellants, in their answer, deny all knowledge of the alleged contract of sale and aver that no such contract was made. They also deny that the appellee entered into possession of the property under or in execution of any contract of sale; and aver that his possession was under and by virtue of a different contract or arrangement made with Green, and not as purchaser; and they further allege that the lime and limestone delivered by the appellee to Green, in his lifetime, was not delivered under or in execution of any contract of purchase or in part payment for the land; but for other accounts and under other contracts and arrangements particularly set out in the answer, but unnecessary to be repeated here. It is sufficient to say that the averments of the bill are distinctly denied by the answer, both as to the alleged contract of sale, and the acts of part performance relied on in the bill of complaint.

"Where a complainant sets up an agreement in his bill which would be invalid by the statute of frauds unless in writing, and the defendant by his answer denies the agreement, it is not necessary for him to plead the statute or insist on it as a bar; but the complainant at the hearing must establish the agreement by written evidence" or by proof of part performance take the case out of the statute.

This was decided in Bank v. Root, 3 Paige, 478. The same rule seems to have been recognized by the late Chancellor in Small v. Owings, 1 Md. Ch. 363. In our judgment it is a correct rule of chancery pleading, and therefore we hold that the appellants in this case may rely upon the defense of the statute, although they have not made that specific defense in their answer.

The rules which govern Courts of Equity in dealing with cases of this kind are well established and have been repeatedly declared by this court. In Canal Co. v. Young, 3 Md. 490, the rule was stated as follows: "where the party claims to take the case out of the statute of frauds, on the ground of part performance of the contract, he must make out by clear and satisfactory proof the existence of the contract as laid in the bill; the act of part performance must be of the identical contract set up. It is not enough that the act is evidence of some agreement; but it must be unequivocal and satisfactory evidence of the particular agreement charged in the bill."

In Mundorff v. Kilbourn, 4 Md. 462, the court said "we need not multiply authorities to show that in cases for specific performance, the complainant must establish the very contract set up in the bill; and that all...