Stewart v. Gilbert , 115 Me. 262 ( 1916 )

Bird, J.

This is a bill in equity brought for the specific performance of an alleged oral contract for the sale of real estate. The single Justice after an oral hearing of the witnesses made certain findings of fact to the effect that the defendants did agree to convey to the plaintiff the premises described in her bill; that the plaintiff paid them therefor the sum of fifteen hundred dollars; that under the agreement plaintiff entered into possession, and with the knowledge of defendants, made a lease of and repairs upon the premises and that she is entitled to sustain her bill. A decree followed accordingly from which the defendants appealed.

The well established rule in this State is that the decision of a single Justice upon matters of fact in an equity case should not be reversed unless the appellate court is clearly convinced of its incorrectness and that the burden of proving error is- upon the party appealing. Sposedo v. Merriman, 111 Maine, 530, 538; Haggett v. Jones, Id., 348. And the rule prevails where an issue must be supported by full, clear and convincing evidence.

We conclude that the single Justice was warranted in finding the alleged agreement to have been made. The defendants urge that the evidence was insufficient to take the contract out of the statute of frauds. In Goodwin v. Smith, 89 Maine, 506, 508, the court says, that the proof of part performance, in order to take the contract out of the operation of the statute of frauds, must be clear and convincing, clear and satisfactory — and held that the acceptanee by the defendant of a substantial sum in part payment, and permitting the plaintiff to take possession of the laud and expend a large sum in improvements in such evidence.

The decree below is affirmed.