Milliken v. Dravo

67 Pa. 230, 1871 Pa. LEXIS 101

• Court: Supreme Court of Pennsylvania
• Decided: January 3, 1871
• Status: Published

Opinion

The opinion of the court was delivered,

by Thompson, C. J.

If the writing found on the paper-book of plaintiff in error was insufficient to take the case out of the Statute of Frauds and Perjuries, there was abundant in the testimony offered and rejected by the court, to have done so, viz.: a contract of sale by parol was offered to be proved, delivery of possession pursuant thereto, part payment of the purchase-money, and valuable improvements made. This was all offered, and was the full measure of all that ever was required by any case to take the sale out of the operation of the Statute of Frauds. Nay more, the balance of the purchase-money was tendered and refused before suit brought. If this was not sufficient to take the case out of the statute, all our decisions on the subject are in error, and no case will ever arise in which any sale will be good without writing; yet we have, in very many instances, held sales by parol, partly executed, good. The cases in which this has been held are too numerous to be cited here. The cases of Richards v. Ellwell, 12 Wright 361; McGibbeney v. Burmaster, 3 P. F. Smith 332; and Lauer v. Lee, 6 Wright 171, among the many in our reports, are sufficiently instructive of what is necessary to avoid the influence of the Statute of Frauds; but if others be required, there is a bead-roll of them cited in these cases. That there was error in the rejection of each and every of the offers made below, and in the direction to the jury to find for the plaintiff, we have not a shadow of doubt, and therefore

The judgment is reversed, and a venire de novo is awarded.