Sample v. Horlacher , 177 Pa. 247 ( 1896 )

Per Curiam,

We are by no means convinced that the learned trial judge erred in directing the jury to find for the defendants. On the contrary, a careful consideration of the evidence on which the plaintiff relies has led us to the conclusion'that it does not come up to the measure of proof that is required in such cases. As was said in Hart v. Carroll, 85 Pa. 510, “ In order to take a parol contract for the sale of lands out of the operation of the statute of frauds its terms must be shown by full, complete, satisfactory and indubitable proof. The evidence must define the boundaries and indicate the quantity of land. It must fix the amount of the consideration. It must establish the fact that possession was taken in pursuance of the contract, and at or immediately after the time it was made, the fact that the change of possession was notorious, and the fact that it has been, exclusive, continuous and maintained. It must show performance or part performance by the vendee which could not be compensated in damages, and such as would make rescission inequitable and unjust.” These rules have been firmly settled by a long line of cases, including those cited in Hart v. Carroll, supra, and many others. It is the duty of the trial judge who, in such cases, exercises the functions of a chancellor to determine, in the first place, whether the evidence adduced is sufficient to support an equity in the party claiming specific execution of the verbal contract, and then for the jury to say whether the testimony is true or not. If the evidence fails to make out a case that can be fairly classed as an exception to the operation of the statute of frauds, it is the duty of the judge either to reject it, or to instruct the jury in favor of the defendant, as was done in this case: Bowers v. Bowers, 95 Pa. 480; Allison v. Burns, 107 Pa. 53; Lord’s Appeal, 105 Pa. 460.

Without further reference to the evidence adduced by the plaintiff or the principles of law applicable thereto, it is sufficient to say that the learned judge was right in giving binding instructions to find for defendants. It is unnecessary to notice the question of estoppel. It is not in the case, because the evidence adduced by plaintiff is insufficient.

Judgment affirmed.