28 ANN BERTA LODGE v. LEVERTON. [Tyler Term,
Opinion of the court.
suit to account for the rents and profits. (2 Story's Eq.,
Other commentators accessible to us announce the rule
in a more restricted and qualified manner. Thus says
Chancellor Kent: " Generally it may be observed that delivery
of possession is part performance. So the making
of beneficial improvements may be taken as part performance."
It will be noted that here it is said "the delivery
of possession," not possession or taking possession, is part
performance. And is it not the inference that it is part
performance by the party delivering the possession? Like
the other instance which he puts, making improvements is
part performance by the purchaser; but surely not so on
the part of the vendor. And says Fonblanquc, p. 149:
"So, if it be carried into execution by one of the parties;
as if by delivering possession, and such execution is accepted
by the other, he that accepts it must perform his
part; for, where there is a performance, the evidence of the
bargain does not lie merely upon the words, but upon the
fact performed. And it is unconscionable that the party
that has received the advantage of the contract should be
admitted to say that such contract was never made."
And says Cruise: "It is said, in the Treatise of Equity,
b. 1, c. 3, § 8, that if a parol agreement be carried into execution
by one of the parties, as by delivering possession,
and such execution be accepted by the other, he that accepts
it must perform his part." And in the next section
adds: "With respect to the acts which have been held to
be part performance of an agreement, the general rule is
that they must be such as could be done with no other
view or design than to perform the agreement. Thus the
delivering of possession and laying out of money has always
been held to be a part performance of a parol agreement."
(2 Greenl. Cruise, tit. 32, ch. 3, series 32, 33.)
And though it is said by Sugden: " So, when agreements
have been partly carried into execution, the court will de
Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42.. St. Louis, Mo.. The Portal to Texas History. http://texashistory.unt.edu/ark:/67531/metapth28531/. Accessed December 19, 2014.