Reynolds v. Scriber

69 P. 48, 41 Or. 407, 1902 Ore. LEXIS 101

• Court: Oregon Supreme Court
• Decided: June 3, 1902
• Status: Published

Opinion

Mr. Chief Justice Bean,

after stating the facts, delivered the opinion of the court.

1. There is some controversy in the testimony, and it is somewhat doubtful whether the contract is so clearly and unmistakably proven as to enable a court of equity to enforce its specific perfomance; but, waiving that point, we are of the opinion that it is void under the statute of frauds, and cannot be enforced for that reason. The contract rests entirely in parol, but it is sought to take it out of the statute on the ground of part performance. It is a familiar rule that where a parol agreement has been so far executed by one party, with the assent and acquiescence of the other, that it would amount to a fraud to allow the latter to repudiate it and shelter himself under the provisions of the statute, a court of equity will interfere and defeat or prevent the fraud by compelling its specific performance: 2 Story, Eq. Jur. (13 ed.) § 759; Browne, Stat. Frauds, § 448b. To constitute a part performance, however, within the meaning of this rule, the acts relied upon for that purpose must have reference to the contract, and clearly appear to have been done solely with a view to its performance. Acts merely preliminary or ancillary to the agreement, such as delivering an abstract of title, giving directions for a conveyance, the preparation of the agreement, making valuations, and other like acts, are not sufficient: 2 Story) Eq. Jur. (13 ed.) § 762; Waterman, Spec. Perf. § 262. Vv natever was done must have been done under the contract, and in part performance of its terms, and should tend to show not only that there had been an agreement, but throw some light upon its nature, so that neither the fact of the contract nor its execution rests solely upon parol evidence. Now, there is no evidence in this ease of such a part performance of the contract sought to be enforced as will take it out of the statute. It is urged that the delivery of the certificates of stock and the McKinnis notes to Slater was sufficient for that purpose. But the evidence clearly shows that they were handed to him for the purpose of enabling him to draw up the necessary contracts and papers, and -were not intended in any way as in execution or performance of its terms. The certificates of stock were not delivered to or accepted by the defendant, nor did he at any time assert any right thereto. The plaintiff himself testifies that he did not intend that the stock should be delivered to the defendant until the McKinnis notes were delivered to him, and the balance due on the purchase price of the stock secured, so that there is no room, under the testimony, for the contention that the delivery of the certificates of stock and the McKinnis notes to Slater was in part performance of the contract.

It is also contended that the resolution of the directors of the mill company canceling the treasury stock, and the resignation of the plaintiff as president and manager of the corporation, are a sufficient performance of the agreement to take it out of the statute; but the evidence does not show that such action in either case was taken solely in pursuance of the terms of the contract, or with the actual or constructive assent of the defendant as part performance thereof. There is a sharp controversy in the testimony as to why the resignation took place, and how the resolution came to be adopted. The plaintiff says that he resigned because of a promise made at the time by the defendant to complete the contract, and that the resolution canceling the treasury stock was acquiesced in ‘by him for the same reason. The defendant, however, has an entirely different version of the transaction. His testimony is to the effect that neither the resignation nor resolution had anything whatever to do with the contract between the plaintiff and himself, but the resignation was brought about by the dissatisfaction of the board of directors with the plaintiff’s management of the business, and the treasury stock was canceled because it had been illegally and unlawfully issued. It is apparent, therefore, that the resignation of the defendant and the cancellation of the treasury stock are not sufficient, under the testimony, to authorize a court of equity to enforce a void contract for the pur chase, by defendant of plaintiff’s stock in the corporation. It is true that the statute referred to was enacted for the purpose of preventing fraud, and therefore cannot be made available, in aid of fraud; but a parol agreement for the sale of personal property at a price not less than $50 is as void in equity as at law, unless the buyer accept and receive some part of such property, or pay at the time some part of the purchase money: Hill’s Ann. Laws, § 785, subd. 5. It is only when there has been such a part performance of a contract void under the statute as would enable the defendant to perpetrate a fraud upon the plaintiff unless it is specifically enforced that a court of equity will enforce its performance.

2. The mere fact that one party refuses to perform the terms of his contract, however fraudulent may be his motives, or however great a wrong it may inflict upon the other, is no ground in itself for the interposition of a court of equity. This principle disposes of the argument based on the act of the defendant in acquiring an assignment of the indebtedness to the La Grande National Bank from the mill company, and also of the motion to vacate the decree and for leave to file a supplemental bill.

We are of the opinion, therefore, that under the law and the facts in this case the decree of the court below should be affirmed, and it is so ordered. Affirmed.