Generally speaking, the performance, or part performance, where the agreement is admittedly oral and for the sale of land, must be such that the court can say, from an examination of the complaint alone, that nonperformance would, unless the other party to the alleged agreement were compelled to perform, be a fraud upon the one claiming performance. ( Eccles v. Kendrick, 80 Mont. 120, 259 P. 609; Mayger v. Cruse, 5 Mont. 485, 6 P. 333; Brennan v. Derby, 124 Or. 574, 265 P. 425; Fowler v. Sutherland, 68 Cal. 414, 9 P. 674; 58 C.J., secs. 465, 477.) So far as the sufficiency of the complaint is concerned, the test is not so much whether the oral contract has been partly or even fully performed.
A note given in connection with the sale of lands which contains no refernce to the terms of the contract of sale is not a sufficient memorandum under the requirements of the statute of frauds. Eccles v. Kendrick, (1927), 80 Mont. 120, 259 P. 609. Part performance, sufficient to take an oral contract out of the statute of frauds, is an act or performance which puts the party performing it in such position that nonperformance would be a fraud upon him. Payment alone is not sufficient part performance.
I think plaintiff is entitled to recover because there was no consideration for the $1,000 which respondent obtained from him. Eccles v. Kendrick, 80 Mont. 120, 259 P. 609; Durkin v. Machesky, 177 Wis. 595, 188 N.W. 97; Reedy v. Ebsen, supra.
"Part performance which will avoid statute of frauds may consist of any act which puts party performing in such position that nonperformance by other would constitute fraud." Eccles v. Kendrick, 80 Mont. 120, 259 P. 609; Shaw v. McNamara Barlow, 85 Mont. 389, 278 P. 836; 27 C.J. pp. 343, 344; 37 C.J.S., Frauds, Statute of, § 249; Utah Mercur Gold Mining Company v. Herschel Gold Mining Company, 103 Utah 249, 134 P.2d 1094. It should be kept in mind the parties in this case cannot be placed in a position of status quo.
The inquiry has been directed toward ascertaining whether the words require that both parties to a contract sign the instrument, and the conclusion of the vast majority of the courts is that the words in question mean "sought to be charged in the action". Hawkins v. Wright, 226 P.2d 957 (Okla. 1951); Eccles v. Kendrick, 259 P. 609 (Mont. 1927); Miller v. Carolina Monazite Co., 152 N.C. 608, 68 S.E. 1, (1910); Williston, Sales, Sec. 113. OPINION
The "party to be charged" means the party to be charged in the particular suit. Eccles v. Kendrick, 80 Mont. 120, 259 P. 609; 2 Williston on Contracts (Rev. Ed.), pp. 1687, 1688, sec. 586; R.C.M. 1947, sec. 17-805; Restatement Contracts, sec. 211. The plaintiff who had not signed the contract supplied the [8] necessary mutuality of obligation by the institution of the action on the contract.
That such agreement or some note or memorandum thereof was not in writing is not a defense here. McIntyre v. Dawes, 71 Mont. 367, 229 P. 846; Eccles v. Kendrick, 80 Mont. 120, 259 P. 609. This is in keeping with R.C.M. 1947, sec. 74-203, providing: "No agreement for the sale of real property, or of any interest therein, is valid, unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged, or his agent, thereunto authorized, in writing; but this does not abridge the power of any court to compel the specific performance of any agreement for the sale of real property in case of part performance thereof."
The part performance of an oral contract which will avoid the statute of frauds may consist of any act which puts the party performing in such a situation that nonperformance by the other would be a fraud upon the person executing his part of the agreement according to its terms. ( Eccles v. Kendrick, 80 Mont. 120, 259 P. 609; Shaw v. McNamara Marlow, 85 Mont. 389, 278 P. 836; 27 C.J., pp. 343, 344.) The case of Dreidlein v. Manger, 69 Mont. 155, 220 P. 1107, relied on by counsel for the defendant, involved an executory contract of employment alleged to have been entered into for a period of three years, terminated by action of one of the parties at the end of the first year. The plaintiff attempted to recover upon the contract, but a distinction was drawn between executory and executed parol agreements, and with approval we quoted the following from volume 25 Ruling Case Law, page 461: "The fact that a contract is to be or may be partially performed within a year does not take it out of the operation of the statute.
( Wright v. Brooks, 47 Mont. 99, 130 P. 968; Wilburn v. Wagner, 59 Mont. 386, 196 P. 978; Milwaukee Land Co. v. Ruesink, 50 Mont. 489, 148 P. 396.) The part performance which will avoid the statute of frauds [7] may consist in any act which puts the party performing in such a situation that the nonperformance by the other would be a fraud upon him. ( Eccles v. Kendrick, 80 Mont. 120, 259 P. 609.) Ordinarily, in order to be entitled to have such a contract [8] specifically enforced, the plaintiff must allege a tender of the balance of the purchase price; but where it is clear that a tender would be useless it is sufficient to allege that he is ready and willing to perform.