The plaintiff seeks in this action a specific performance of a contract for the sale of lands. The contract set out in the complaint is an agreement for the sale of the real estate in question for the price of $10,000, payable by the assumption on the part of the defendants of certain incumbrances thereon to the amount of $9500, and of $500 in two notes of the defendant Childs, at six and twelve months. The defendant Eiley, in his answer, admits the contract as stated in the complaint, except that the contract price was to be $9500, and denies all knowledge of, or assent to, any agreement to pay the $500 for which the notes of Child were so given, and states that the contract was by parol. The defendant Eiley has paid $1882.25 towards the purchase money, and the defendants went into possession, which however had been restored to the plaintiff before the commencement of this suit. As the contract stated in the answer is essentially different from that set up in the complaint, the contract set up in the complaint being by parol, clearly cannot be specifically enforced. (Fonblanque’s Eq. book 1, chap. 3, sec. 8, note d. Harris v. Knicherbacher, 5 Wend. 638. Willard’s Eq. 282.) In such a case it was not admissible, under the former system of pleading, where there was dispute about the terms of the contract, to establish the same by parol, for that is the very mischief the statute was designed to prevent; and a contract by parol was only enforced when not denied in the answer, upon the principle that, being admitted, no proof of it was requisite, and the statute was thereby waived. (Story, § 755.) If the de*191fendant Eiley had simply denied the contract set up in the complaint, the plaintiff would have heen obliged to prove a written contract valid in law; or, if admitting the contract he had alleged that it was by parol and insisted on the statute, then there could have been no specific performance, and the complaint in such case must have been dismissed. (2 Paige 177. 5 Wend. 638.) But as the defendant admits the making of a contract and sets out its terms, and does not insist on the statute in his answer, the contract .thus set out in the defendant’s answer might perhaps be specifically enforced, (if the code has not altered the rule of pleading in such cases;) and if need be, the complaint might he amended to conform to the contract thus admitted. The defendant’s contract is thus reduced to writing in his sworn answer. (Story’s Eg. §§ 754, 755.) But I think the code does alter the rule of pleading, in such cases, and that the answer is sufficient in this case without setting up the statute. A party in pleading now need only state the facts he is required to prove, and need not insist on his legal rights under any statute, or draw legal conclusions. But the defendant Eiley has made, for the purpose of this suit, no contract for the purchase of the land in question, binding upon him in any event, except the one thus stated in his answer, as there is no basis for the enforcement of the contract on the ground of a part performance. Part payment is not such part performance as will entitle a vendee of lands to a specific performance. (Story’s Eg. §§ 760, 761. Sug. on Vend. § 3, ch. 3, p. 112, 7th ed.) And such part performance would not be available in favor of the vendor, for much stronger reasons. The possession taken by the defendant in this case is not a basis for a specific performance, because it had been surrendered by the defendant and received by the plaintiff before the commencement of this action. But assuming that the defendant, by not pleading it, has waived the statute, and that the contract set out in the answer of the defendant Eiley is the true contract between the parties, can *192the plaintiff have a decree requiring the defendant to perform such contract specifically P Very clearly I think she cannot, upon the allegations and proofs in this action. The plaintiff does not aver and show that she is ready and willing to perform this agreement, and on the contrary the defendant Eiley alleges and proved that he was ready and willing and offered to perform the same, and that he demanded the deed before the commencement of this suit, and the plaintiff by her agent refused to perform. Upon this issue, therefore, there is no ground for a recovery in this action, and the referee should have dismissed the complaint so far as relates to the case upon the main issue on the part of the plaintiff. Whether the defendant was entitled to recover the $1882.25 is another question arising upon- the defendant’s counter-claim, which will remain for consideration on a retrial of the cause; and as there must be a new trial, I think it had better be left unconsidered by the court and undecided. The judgment should be reversed, and a new trial granted, with costs to abide the event.
[Monroe General Term, March 4, 1861.Smith, Johnson and Knox, Justices.]