Carpenter v. Tinglof , 76 N.H. 454 ( 1912 )

The memorandum of October 1, 1906, does not answer the requirements of the statute of frauds. It fails to state the consideration for the purchase. Such a statement is necessary (Phelps v. Stillings, 60 N.H. 505; Stockwell v. Williams, 68 N.H. 75; Chellis v. Grimes, 72 N.H. 337), except when the consideration has been paid and the writing contains an acknowledgment that payment has been made in full. Andersen v. Young,74 N.H. 428, 431, 432. Being deficient in the particular mentioned, it is unnecessary to consider whether the writing is also faulty as to the description of the property. Weed v. Woods, 71 N.H. 581; White v. Poole,74 N.H. 71, 73.

Notwithstanding the contract was oral, is the case withdrawn from the operation of the statute of frauds so that the defendants or either of them are entitled to equitable relief because of the possession taken and improvements made upon the property?

It appears that the plaintiff's contract for the sale of the land was with Hultman, that Hultman never entered into the possession of the property under the contract, that he did not pay the purchase price, and that he made no improvements upon the property, valuable or otherwise. Such circumstances do not entitle him to a decree for the specific performance of the contract. In order to entitle a party to a decree for the conveyance of land, upon the ground of a partial performance of a verbal contract, he must not only establish the contract under which he claims, but also such a partial performance of the contract, relying upon its fulfilment, that the non-performance thereof by the other party will be a fraud upon him. White v. Poole, 74 N.H. 71, 73, and cases there cited.

The improvements were made by Tinglof, but they are found not to have been substantial or valuable. His possession of the property was pursuant to an arrangement with Hultman and not by reason of any agreement with the plaintiff. The contract of sale was not made with him and was not assignable. Abbott v. Baldwin, 61 N.H. 583; Howe v. Batchelder,49 N.H. 204. He is clearly not entitled to the relief asked.

Furthermore, the trial court has found that the terms of the contract of sale have never been performed by the defendants, that the tender made in 1910 was inadequate and made too late, that a reasonable time within which payments could have been made had elapsed in 1909 when the plaintiff brought his writ of entry, that no sufficient excuse for not making them was shown, and that equity did not require that any of the property should be conveyed to the defendants or either of them. In view of these findings it is difficult to see why the case is here. The order is, defendants' exceptions overruled.

Judgment for the plaintiff.

All concurred.