Bigelow v. Armes

Both parties fully understood at the time that the  property referred to was that described in the bill, and   that an exchange was to be made on the terms stated in   the memorandum. As the wife of Bigelow was absent, the  contract entered into could not be consummated by an   interchange of deeds until her return, which was not   expected until some time in January following. Armes,  however, was in need of the money, which was to be paid   him, or a part of it, and so on the twenty-fourth of   November, two days after the memorandum was signed, he   and his wife executed a deed, in accordance with the   terms of the contract, conveying the house and lot on   Eighth street to Bigelow. This deed Armes took to  Bigelow, and asked for $400 on account of the money he   was to have, offering to deliver the deed if the payment   was made. Bigelow accepted the offer, paid the money, and took the deed, agreeing, however, on the     request of Armes, not to have the deed recorded until the      contract was otherwise performed. Notwithstanding this     agreement, he did have it recorded at once. At the same time     with the delivery of the deed Armes put Bigelow in possession      of the property, and thus fully executed the contract on his      part. Bigelow afterwards paid Armes $105 more on the cash     payment he was to make, and delivered him the possession of      the property on Delaware avenue. All this was done in part     performance of the contract on his part, and it was so      understood by both parties. Armes, after he got possession of     the Delaware-avenue property, made some repairs on the house      with the knowledge of Bigelow. Afterwards Bigelow refused to     carry out the contract on his part by delivering deeds for      the Delaware avenue and Virginia property, and having the      memorandum which had been signed in his possession, undertook      to destroy it by tearing it into pieces and throwing the      pieces into a waste-basket.

Upon these facts, in our opinion, it was the duty of the court below to enter the decree it did requiring a completion of the performance of the contract by Bigelow. Whether, in view of the requirements of the statute of frauds, the memorandum signed by both parties was of itself sufficient to support the bill, is a question we do not think it important to discuss, because if the memorandum is not enough, the terms of the contract have been otherwise clearly established by the evidence, and there has been full performance by Armes, and substantial part performance by Bigelow.

The decree is affirmed.

S. S. Henkle, for appellant.

C. H. Armes, for appellee.

WAITE, C. J.