
    Crabill v. Marsh.
    1. On a verbal agreement for the conveyance of land, the payment of the purchase money, whether made in money or services, will not take the agreement out of the operation of the statute of frauds.
    2. In an action to recover compensation in lieu of the specific performance of an agreement for the conveyance of land, on the ground tiiat specific performance has become impracticable, the real representatives of the deceased selling party are necessary parties ; and if they have disabled themselves from performing the agreement, they are the parties chargeable with making compensation.
    Error to the District Court of Clark county.
    The original action was brought by Nancy Marsh in the court of common pleas of Clark county, against William IT. Crabill, executor of Nathan Marsh, deceased. It appears from the petition that Nathan Marsh made his last will and testament on the 21st day of October, 1867, by which he gave to John Marsh, his only child, a large amount of personal property and real estate, which included a tract of 320 acres on which said Nathan resided ; that the plaintiff was married to John Marsh in November, 1869, and after said marriage they lived with said Nathan on his farm and assisted him in the management and control thereof; that John died in October, 1870, intestate and without issue, leaving the plaintiff surviving him; that soon after the death of said John the plaintiff proposed to remove from the farm of the said Nathan and return to her father’s house!, to which Nathan, being in feeble health, objected, and proposed .to the plaintiff that if she would live with him, superintend his home, care for and nurse him during the remainder of his life-time, she should have the. principal portion of his estate and should have all the property by him bequeathed to his son John by his said will; and that he would convey the same to her by deed or will. . It is averred that she accepted this proposition and continued to live with him until his death, and performed the agreement on her part. It is also averred that he did not convey the property by deed or will, or provide for her as he had agreed. For the non-performance of the agreement damages are claimed.
    The second defense of the answer sets up that the said pretended agreement was within the statute of frauds, the same not being in writing nor any note or memorandum' thereof. To this defense the plaintiffs demurred, and the demurrer was sustained. The other defenses traversed the averments of the petition. On the issues thus raised the case was submitted to a jury.
    At the conclusion of the evidence the defendant, among other things, requested the court to instruct the jury as follows.
    “ 2. The fact that a daugliter-in-law continues to live with her father-in-law after her husband’s decease, as his housekeeper, in the same capacity in which she lived with him during the life-time of her husband, is not such part performance of an oral contract made after the death of the husband for the purchase of land as will take the contract out of the operation of the statute of frauds, and if the jury find this to be the only extent to which the plaintiff has performed the alleged contract they must find the contract to be in writing before they can find for the plaintiff.
    
      “ 3. That the value of the property devised and bequeathed to John is not the fixed and determinate measure of damages that the plaintiff is entitled to recover in this action.”
    These instructions the court refused to give, to which refusal the defendant excepted. A verdict was returned for the plaintiff, on which judgment was rendered. On error this judgment was affirmed by the district court; and the present petition in error is prosecuted to reverse these judgments.
    Bowman, Pringle de Scott, for plaintiffs in error, and John H. Littler, for some of the heirs :
    The demurrer to the second defense should have been overruled. The case is within the statute of frauds, 1 S. & C. 659. This is not a suit in equity for specific performance, and whatever may be the rule in equity, as to performance or part performance, taking the case out of the statute, we submit that the rule does not apply to actions at law. 3 Parsons on Contracts (6th ed.) 59 ; Chitty'on Contracts, 329; 2 Johns. 222. "Where equity interferes it is to prevent fraud. Baldwin v. Palmer, 10 N. Y. 244; Boyd v. Stone, 11 Mass. 348. As to the effect of part performance, see 1 Pick. 328, 331, 332; 1 Metcalf, 485; 6 Pick. 516; 6 Paige, 288; 18 Conn. 231; Brown on Statute of Frauds (2nd ed.) 454, § 451; King v. Brown, 2 Hill, 485; Lisk v. Sherman, 25 Barb. 433; Davis v. Moore, 9 Rich. (S. C.) L. 215; 43 N. Y. 555; Mathers v. Scotas, 35 Ind. 1; Wood v. Jones, 35 Texas, 64; 37 N. H. 185; 78 Ill. 124; 65 Ill. 395; 81 Pa. 517; 57 Id. 457; Overmeyer v. Koerner, 81 Pa. 517; Erben v. Lorillard, 23 Barb. 82; 19 N. Y. 299; Lisk v. Sherman, 25 Barb. 433; Sites v. Keller, 6 Ohio, 483; Pollard v. Kinner, 6 Ohio, 528; Armstrong v. Kattenhorn, 11 Ohio, 265; Shute v. Dorr, 5 Wend. 204; McNair v. Compton, 35 Pa. 23; Bender v. Bender, 37 Pa. 419; 43 Id. 441; Brown on Frauds, § 124, p. 127; Id. § 129, pp. 130, 134; Bartlett v. Wheeler, 44 Barb. 162; Campbell v. Campbell, 65 Barb. 639; Milliken v. Drew, 67 Pa. 250.
    
      Harrison, Olds & Marsh, and Spence ds Arthur, for defendant in error:
    I. The contract itself was of such a nature that complete performance of it, on the part of the plaintiff, withdrew it, wholly, from the stature of frauds. The agreement was not one of mere hiring, nor was it an agreement between strangers into -which mere pecuniary considerations entered.
    This son married the plaintiff, and about a year afterward he died, leaving her his widow and sole heir-at-law. At the request of her father-in-law, she then agreed with him to devote all her energies, so long as he should live, in meliorating his condition, by personally superintending his household affairs, and caring for, watching over, and nursing him, and giving liim her companionship and society. This involved, upon her part, serious risks and sacrifices, in many ways: 1. The duration of the service was uncertain. It had but a single limitation — it was not to terminate until Nathan Marsh should depart this life. Stress was laid upon this element in the agreement in the case of Rhodes v. Rhodes, 3 Sandf. 279.
    2. She not only bound herself to do everything in her power to promote the comfort and happiness of the old gentleman, but also to refrain from doing anything, however valuable or desirable the same might be to her, which would or might be inconsistent or interfere, in any degree, with an assiduous and constant and faithful discharge by her of the obligations so assumed by her to him. The character of the undertaking, upon her part, to be performed was such that she thereby absolutely prechided herself from marrying again during his life-time ; and he might have lived many years. She was a young woman. She was also obliged to forego her naturally fond desire to return to her former home.
    3. She might not have suiwived him. In that event, she would not have received any compensation, no matter how many years of her life she might have spent in ministering to his comfort. It is plain that the considerations which entered into this agreement cannot be estimated or measured in dollars and cents. Sutton v. Hayden, 62 Mo. From these premises the conclusion follows, that Mrs. Marsh cannot be restored to the position or situation she occupied before her execution of the contract. On the contrary, by making and performing it, she was put in such a situation that it would be a palpable fraud upon her not to grant her the benefit of full performance, or what will be equivalent to full performance, of the contract upon the part of the other contracting party. The contract, therefore, was withdrawn wholly from the operation of the statute. But where the consideration consists of services to be rendered, which are of such a peculiar character that it is impossible to estimate their value to the vendor by a pecuniary standard, and the parties did not intend to measure them by such a standard, the performance will entitle the ver dee to enforce the contract, notwithstanding it was by parol. Browne St. of Frauds, § 463; Pomeroy Sp. Perf. Cont. §§ 114,135 ; Rhodes v. Rhodes, 3 Sandf. Ch. 279; Twiss v. George, 33 Mich. 253; Davisson v. Davisson, 2 Beasl. 426; Johnson v. Hubbell, 2 Stockt. Ch. 332; Frost v. Tarr, 53 Ind. 390; Van Dyne v. Freeland, 3 Stockt. Ch. 370; Chastian v. Smith, 30 Geo. 96; Gupton v. Gupton, 47 Mo. 37; Bell v. Hewitts Executors, 24 Ind. 280; Bonnon v. Urton, 3 G. Green (Iowa) 228; Malins v. Brown, 4 N. Y. 403; Mundy v. Joliff, 5 Myl. & C. 117; Bishop on Contracts, § 505.-
    II. The plaintiff was entitled to recover the judgment below. It is immaterial whether the plaintiffs right of action was one of legal cognizance or of equitable cognizance merely. In either case she was entitled to recover the judgment which the plaintiff in error seeks to reverse. A court of chancery does not entertain jurisdiction where the sole object of the petition is to obtain compensation in damages for the breach of a contract, except where the contract is of equitable cognizance merely. Where the contract is valid at law, as well as in equity, the ground for the interference of a court of equity does not exist, because there is no failure of the remedy at law. Willard Eq. Jur. (Potter’s ed.) 291, 309, 310; Story Eq. Jur. §§ 724, 798, 799; Morrs v. Elmendorff, 11 Paige, 277, 288; 1 Hoffm. Ch. 470; 47 Mo. 37.
    But if a contract is of equitable cognizance merely, because it is valid in equity only, and there is not an adequate remedy at law in favor of the injured party, a court of chancery has jurisdiction where the sole object of the petition is to obtain a specific execution of such contract, or to obtain compensation in damages for its breach. See authorities last cited, and Rees v. Smith, 1 Ohio 124, 130, 131; Gibbs v. Champion, 3 Ohio, 337; Dustin v. Newcomer, 8 Ohio, 49; Peabody v. Tarbell, 2 Cush. 226; Andrews v. Brown, 3 Cush. 130; Pomeroy Sp. Perf. of Cont. § 480; Pomeroy Rem. by Civil Action, §§ 76-85; Sternberger v. McGovern, 54 N. Y. 12, 20-21; Hamilton v. Hamilton, 59 Mo. 232; Gupton v. Gupton, 47 Mo. 37, 47.
    III. In this state, such oral contracts as the statute of frauds provides shall be in writing, may be enforced either on the law or the equity side of the court, which has original jurisdiction in all civil actions when such contracts have been fully performed by the plaintiff, and the acts of performance are of such a nature as to wholly withdraw the contract from the operation of the statute. Such cases are, in Ohio, held not to be within the design or prohibition of the statute, Full and complete execution of the contract by the plaintiff here creates an estoppel, on both sides of the court, against the plea of the statute by the defendant. Wilbur v. Paine, 1 Ohio, 251; Moore v. Beasley, 3 Ohio, 294; Armstrong v. Katterhorn, 11 Ohio, 265; Grant v. Ramsey, 7 Ohio St. 157; Abbott v. Inskip, 29 Ohio St. 59; 1 Smith L. C. pt. 1, p. 592; Brannon v. Urton, 3 G. Green, 228; Bell v. Hewitt's Executor, 24 Ind. 280; Frost v. Tarr, 53 Ind. 390; Suggett v. Carson, 26 Mo. 221; Bryan v. Southwestern R. R. Co., 37 Geo. 25; Philbrook v. Belknap, 6 Vt. 383; 1 Root, 142, 233, 479; 2 Root, 191, 387; 7 Conn. 224; 14 Conn. 119; 18 Conn. 222. Howard v. Brower, 37 Ohio St. 402, is distinguishable from this in that, 1. The contract in that case was one of mere hiring. Pecuniary considerations alone entered into it. It had not a single element or feature of “ a family arrangement ” into which other considerations than those which are merely pecuniary enter and predominate. 2. In that ease the decedent promised to pay Brower the reasonable value of his services, and, also, “ $10,000 in land or money” — not any specific specified land, but any land worth $10,000. In this case the promise was to convey to the plaintiff certain specified land, and also certain chattel property, as well as $5,000 in money. In Brower’s case, that part of the promise of the decedent which was within the statute could not be separated from that which was not within it. On this point see Metcalf on Contracts, 253; Rand v. Mather, 11 Cush. 1; Haynes v. Nice, 100 Mass. 327; State v. Finley, 10 Ohio 51, 55.
    
      Bowman, Pringle (& Scott, in reply :
    1. The alleged contract, if established, was not taken out of the statute of frauds by part performance. Fry on Sp. Perf. 251, §384; Wheeler v. Reynolds, 66 N. Y. 232; Pomeroy on Sp. Pei\ 152; Browne on Statute of Frauds, 458; Story Eq. Jur. §§ 762, 764; Gosse v. Jones, 73 Ill. 508; Knott v. Harvey, 19 Wis. 110; 1 Parson on Contracts, 531, n. e and cases cited; Titman v. Titman, 64 Pa. St. 480; Pillage v. Pillage, 32 Wis. 136. An examination of the authorities cited in the argument in behalf of defendant in error will disclose that they, while they are a skillful collection of very peculiar cases, are all within the foregoing principle.
    2. Even if the plaintiff’s acts of part performance did establish the existence of a contract, they would still not take the case out of the statute of frauds. The services which she rendered were not peculiar. Nathan Marsh was a man of wealth, and had a comfortable home. She lived with him about three years and superintended his household affairs. Nathan'Marsh was not sick, nor was there anything in his condition requiring services incapable of being measured by a pecuniary compensation. It is not shown by the evidence that the plaintiff rendered any services out of the ordinary course. We submit that the true rule is stated in Cronk v. Trumble, 66 Ill. 428. This case is altogether analogous to the case of Howard v. Brower, 37 Ohio St. 402.
    3. Part performance tabes a contract out of the statute of frauds in equity only, and hence it does not entitle the plaintiff to maintain the judgment in this case. The petition is-against the executor of Nathan Marsh alone; his lieirs-at-law. are not made parties. It does not seek specific performance of the contract or any remedy in equity. The petition avers-: 1st. The making of the contract. 2nd. Its performance by the plaintiff. 3rd. A breach of the contract by Nathan Marsh. 4th. The presentation of a money claim to the executor for the damages sustained by the breach of the contract.. It is not alleged in the petition that Nathan Marsh did any act which disabled him from the performance of the contract, nor that any state of facts existed, at the time of the filing-,- of the petition, which rendered a specific execution of the contract impracticable, nor wras any evidence offered to establish any such state of facts, nor was any claim of the kind ever made in the case until the plaintiffs filed their argument in this court-.
   White, J.

This case is governed by the decision in Howard v. Brower, 37 Ohio St. 403. In that case, as in this, the action was brought against the personal representative of the deceased contracting party for the recovery of money only ; and before the adoption of the code would have been an action at law to recover damages for the breach of the alleged contract.

On behalf of the defendant in error, the present case is sought to be distinguished from Howard v. Brower, on the ground that the’present case may be regarded as an equitable action brought to recover compensation in lieu of specific performance, where specific performance has become impracticable.

In such a case, as respects the land, the real representatives of the deceased were the necessary parties to be sued' for the specific performance of the agreement; and if they should be found to have disabled themselves from so doing, they are the parties to be charged with making compensation. But the petition does not assert any cause of action against them, nor are they parties to the action. The distinction, therefore, sought to be made between the two cases cannot be supported.

The present case is as clearly within the statute of frauds .as the case of Howard v. Brower, supra.

That mere payment of the purchase money, whether made in money or services, will not take the case out of the operation of the statute, we regard as well settled. Sites v. Keller, 6 Ohio, 484; Pollard v. Kinner, Id. 528; Armstrong v. Kattenhorn, 11 Id. 256; Ham v. Goodrich, 37 N. H. 185; Horn v. Ludington, 32 Wis. 73; Temple v. Johnson, 71 Ill. 13; Sutton v. Rowley, 44 Mich. 113.

' But we are not called upon, in this case, to determine under what circumstances equity will, or will not, decree specific performance of a parol agreement for the devise or conveyance •of lands. .Such is not the character of the case before us. The ground upon which courts of equity interfere, in such ■cases, is that of fraud. The jurisdiction is founded, not upon the agreement,'but upon the fraud. And a mere refusal to perform a parol agreement, void under the statute of frauds, is in no sense fraud, either in law or equity. Wheeler v. Reynolds, 66 N. Y. 227.

In the present case we are unanimous in the opinion that the agreement sued on is within the statute, and the plaintiff in error is not chargeable with its breach.

Judgment reversed, verdActset aside, demurrer to the second defense overruled, and cause remanded to the court of common goleas for further goroceedi/ngs.  