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"nothing is to be considered as a part-performance, which does not put the party into a situation, that is a fraud upon him, unless the agreement is performed; for instance, if upon a parol agreement, a man is admitted into possession, he is made a trespasser, and is liable to answer as a trespasser, if there be no agreement. This is put strongly in the case of Foxcraft v. Lister (i); there, the party was let into possession on a parol agreement, and it was said that he ought not to be liable as a wrong doer, and to account for the rents and profits, because he entered in pursuance of an agreement. Then, for the purpose of defending himself against a charge, which might otherwise be made against him, such evidence was admissible; and if it was admissible for such purpose, there is no reason why it should not be admissible throughout. That," said Lord Redesdale, "I apprehend to be the ground, on which courts of equity have proceeded, in permitting part-performance of an agreement to be a ground for avoiding the statute; and I take it, therefore, that nothing is to be considered as part-performance, which is not of that nature. Payment of money is not part-performance, for it may be repaid; and then the parties will be just as they were before, especially if repaid with interest. But the great reason, why part-payment does not take such an agreement out of the statute, is, that the statute lias said, that in another case, namely, with respect to goods, it shall operate as a part-performance; and the courts have therefore considered this as excluding agreements for lands, because it is to be inferred, that when the legislature said it should bind in the case of goods, and were silent as to the case of lands, they meant it should not bind in the case of lands."
3. Mistakes and misapprehensions in the drawers of deeds or written agreements are a subject for relief in courts of equity, and may be rectified according to the
(t) 1Vern. 456.
true intention of the parties (i). Thus, on a bill to rectify a mistake in a policy of insurance, which the plaintiff suggested to have been made too general and contrary to the intention of the parties, Lord Hardwicke said (2), there could be no doubt, but that the Court of Chancery had jurisdiction to relieve in respect of a plain mistake in contracts in writing, as well as against fraud in contracts; so that if reduced into writing, contrary to the intention of the parties, on proper proof that would be rectified. "This," as Lord Eldon has observed (3), " is loose in one sense, as it leaves to every judge to say, whether the proof is that proper proof, which ought to satisfy him." The principal evidence on the part of the plaintiff, in this case, was the deposition of a witness, who had transacted the business for the Company (the defendants), but this evidence appeared to the Court not sufficiently certain to be relied upon. Lord Hardwicke observed, that the proof in such a case ought to be the strongest possible; and as it did not sufficiently appear to the Court, that the policy had been framed contrary to the intention and real agreement of the parties, the bill was dismissed. In the case of Baker v. Paine, on a bill filed for an account under a written agreement, the minutes and calculation?, which had been previously made by the parties, were admitted in evidence, in order to prove a mistake made in the agreement by the person employed to draw it (4). And in a variety of cases where settlements have been drawn by mistake, contrary to the instruction of the parties, the mistake has been rectified by courts of equity, and the settlement made conformably to the instructions (5). The Court, however, will expect full and satisfactory evidence of the mistake and misapprehension of the party's intention, be1
(1) a Atk. 203. (4) Biker v. Paine, 1 Ves. 4.57.,
(a) Henkle v. Roy. Ex. Assur. C'omp. cited in Rich v. Jackson, 6 Ves. jun, I Ves. 3,8., cited 6 Ves. jun 33 3. See 336. n.
also Motteux v. Lond. Assur. Conip. (5) Randal v. Randal, 7, P. Wms. 1 Atk. 545. Thomas v. Fraser, 3 Ves. 469. Jenkins v. Quinchant, 5 Ves.jun. jun. 399. 10 Ves.jim. 117. 596.n. Barstow v. Kilvington,5 Ves.
(3) 6 Ve .jun. s:5. ju"-593- P"rt Barlow, 3 Bro. Ch.
fore fore it will alter a settlement. In one case, where the parol evidence of the attorney, who had received verbal instructions, was offered, the Court held, that as nothing appeared in writing under the hands of the parties to shew their intention, the settlement could not be altered (i); and in another case, Sir Thomas Clarke is reported to have said, that he did not give a positive opinioD as to the head of mistake, but he did not think the Court had relied on parol evidence only. (2)
4. Provisions in wills have in certain cases been enlarged by parol evidence, and trusts in equity raised, as against executors or other persons claiming an interest under wills, where it has appeared that the testator intended to make a further provision in his will, but omitted to insert it on receiving a promise, that, notwithstanding such omission, his intention should be carried into effect. Thus, in the case of Oldham v. Litchford (3), a witness was allowed to prove, that the defendant, who was the testator's executor and devisee of his real estate, had promised the testator, that he would pay the annuity bequeathed to the plaintiff, and that otherwise the testator would have charged the real estate with the payment. And on this evidence, it was decreed at the Rolls, that the real estate should be charged with the annuity: and this decree was afterwards affirmed on appeal to the Court of Chancery. In a later case (4), where a bill was filed against an executor and residuary legatee, to have a bequest enlarged, it appeared from a paper written by the defendant himself, that the testator, a few days before his death, had mentioned to him what he had bequeathed to the plaintiff, and that it was his wish that he should have a larger sum; it was further proved, that after the testrtor's death, when the paper was shewn to the defendant,
(1) Haiw.iod v. Wa'.lis, ci'c:i 2 Vet. (3) 2 Vern..Jc.C.
19S. (•») Birron r. Grcei.oush, 3 V«.
(2) 1 D'ck. 295. .And sec Slier- jun. gold v. Eoone,i3 Ve, jun. 373, 6.
he he promised to perform the same according to the testator's request; another witness proved, that the testator mentioned to him, in the presence of the defendant, the annuity which he had bequeathed to the plaintiff, and that it was his desire he should have a larger annuity, mentioning the sum; that the testator then requested the defendant to see such annuity paid to the plaintiff, and the defendant promised it should be done, as if it had been expressed in the will; and lastly, that the witness and the defendant desired the testator to send for some person to draw a new will, which the testator refused to do, saying he would leave it to the defendant's generosity. "Upon this evidence," said the Master of the Rolls, "the question is, whether, by reposing that trust in the defendant, the testator was not prevented from making a new will. The defendant ought to have told him, that if he did not put it in his will, he would not do it. Instead of that, he promised to do it; upon which the testator refused to make a new will. I am quite relieved," added the Master of the Rolls, "from any difficulty as to the statute of frauds. The question is, whether the confidence, that the defendant would perform the trust he undertook, did not prevent the testator from making a new will." The Court accordingly ordered the defendant to pay the increased sum out of the assets, with costs; and, if the assets were not sufficient for the costs, that he should pay them personally.