Buck v. Dowley

Chapman, J.

This suit was brought in the year 1856, when the equity jurisdiction of the court was limited. The plaintiff cannot therefore avail himself of its present general jurisdiction. Sanborn v. Sanborn, 7 Gray, 142. So far then as the bill seeks for the specific performance of a parol contract on the ground of part performance, it is met by the objection that c. 81, § 8, of the Rev. Sts., gives the court no jurisdiction of such cases. Jacobs v. Peterborough & Shirley Railroad, 8 Cush. 223. So far as it seeks the enforcement of a parol trust respecting real estate, it is met by the objection that no such trust can exist in this Commonwealth, unless it be a resulting trust, which this is not pretended to be. Rev. Sts. c. 59, § 30.

It is contended, however, that as the St. of 1855, c. 194, gave the court jurisdiction in all cases of fraud, the refusal of the defendant to complete the performance of a parol contract, which has been partly performed, may be treated as a constructive fraud, as has sometimes been done by courts having full equity powers, and that on this ground its full performance may be enforced under this statute. But we are of opinion that this statute, like all the other acts conferring limited equity jurisdiction upon the court, is to be construed strictly, and not to be extended by implication. This view of these statutes is stated in Attaquin v. Fish, 5 Met. 140, and several other cases. And as the court held that it could not take jurisdiction in matters of fraud under its power to enforce and regulate trusts; Whitney v. Stearns, 11 Met. 319 ; so it should refuse to enforce the specific performance of parol contracts, by treating the nonperformance as a constructive fraud.

It is not necessary to decide whether the court would now, in the possession of full chancery jurisdiction, enforce such performance on the ground of part performance. It is sufficient to say, that when this suit was brought, the court had no power to enforce the specific performance of any contracts, except such as were in writing. The parol evidence which was offered was therefore inadmissible.

Nor can the plaintiff derive any aid from the admissions contained in the defendant’s answer. They set forth an agreement variant from that stated in the bill in most of its important particulars; and in order to avail himself of it as the foundation of a decree, the plaintiff should have amended his bill so as to state it; for in equity, as well as at law, there must be allegations as the basis of proofs, and there must be no substantial variance between them. Story Eq. Pl. § 394, note 2 Dan. Ch. Pract. 1000. Even if the agreement stated in the answer could be taken in connection with the acts of performance stated in the bill, a case would not be made upon which the plaintiff could recover, for it would not appear that such a contract as that has been performed by the plaintiff, or that he has done any acts under it; nor would he be entitled to recover for labor performed, materials provided, or money paid in the erection of the buildings. Without other allegations which are not made, he would not be entitled to a discovery or an account. The idea of a partnership, which was suggested in argument, derives no support from the agreement.

Bill dismissed.