PERFORMANCE. The act of doing some thing. It is synonymous with fulfilling. /Etna Ins. Co. v. Kitties, 81 Ind. 97.
The thing done : as, Paul is exonerated from the obligation of his contract by its performance.
When a contract has been made by parol, which under the statute of frauds could not be enforced, because it was not in writ ing, and the party seeking to avoid it has re ceived the whole or a part performance of such agreement, he cannot afterwards avoid it; Parkhurst v. Van Cortlandt, 1 Johns. Ch. (N. Y.) 273 ; L. R. 1 Ch. 35; Denver & R. G. R. Co. v. Ristine, 77 Fed. 58, 23 C. C. A. 13, 40 U. S. App. 579; and such part perform ance will enable the other party to prove it Thompson v. Tod, 1 Pet. C. C. 380, Fed. Cas. No. 13,978 ; Smith „v. Brailsford, 1 Des. (S. C.) 350; Ebert v. Wood, 1 Binn. (Pa.) 218, 2 Am. Dec. 436.
The statute of frauds does not apply to a contract which has been fully performed by one party and partially, at least, by the other ; Warwick & C. Water Co. v. (R. I.) 35 Atl. 579. An agreement for con structing a party wall is so performed as to take it out of the statute when built by one owner and used by the other; Duvelmeyer v. Duvelmeyer, 7 Ohio Dec. 426. Part per formance of a verbal contract for the sale of land is not sufficient to avoid the stat ute; Washington v. Soria, 73 Miss. 665, 19 South. 485, 55 Ana. St. Rep. 555; though in some cases it is Goodwin v. Smith, 89 Me. 506, 36 Atl. 997 ; as where the land was se lected and a conveyance made ; Lingeman v. Shirk, 15 Ind. App. 432, 43 N. EL 33; and where there has been an entry into posses sion under a parol promise and a deed has been tendered, it is sufficient part perform ance to sustain an action for the purchase money, though it would not have been for compelling specific performance; Stephens v. Harding, 48 Neb. 659, 67 N. W. 746.
If it is a parol contract for the sale of land, the general rule in equity is that it is taken out of the statute of frauds if there has been such part performance as to make it a fraud not to complete the contract; but 'if adequate compensation can be had in dam ages, the party is left to his suit. Where the performance has been in giving personal service, specific performance has been de creed ; Lothrop v. Marble, 12 S. D. 511; 81
N. W. 885, 76 Am. St. Rep. 626 ; Davison v. Davison, 13 N. J. Eq. 240; contra, 8 App. Cas. 467.
The question what is sufficient delivery to operate as part performance to avoid the statute is one of frequent occurrence, and must usu4lly be determined upon the cir cumstances of each case and is not a subject upon which it is easy to generalize. See St. Paul & M. Trust Co. v. Howell, 59 Minn. 295, 61 N. W. 141; Agnew v. Dumas, 64 Vt. 147, 23 Atl. 634 ; Curtis v. Lumber Co., 114 N. C. 530, 19 S. E. 374; Corbett v. Wolford, 84 Md. 426, 35 Atl. 1088 ; Powder River L. S. Co. v. Lamb, 38 Neb. 339, 56 N. W. 1019; Hudson Furniture Co. v. Carpet Co., 10 Utah, 31, 36 Pac. 132.
The question of performance becomes im portant where it is necessary to determine whether the non-performance of one party according to the exact terms of the contract will prevent a recovery upon it, or in case that is not permitted, upon a quantum mer uit. As to the effect of a contract for serv ices, where the employe is discharged for good cause before the termination of his con tract, the authorities conflict. See Timber lake v. Thayer, 71 Miss. 279, 14 South. 446, 24 L. R. A. 231, where the authorities are collected. See also MASTER AND SERVANT. Where there is a contract for permanent em ployment, a substantial performance by the employer would have the effect of releasing him from liability upon his contract to an employe who refused to comply with the terms of the contract ; Chicago, B. & Q. R. Co. v. Cochran, 42 Neb. 531, 60 N. W. 894.
One who abandons a contract or refuses to perform it, the other party being willing to complete his performance, cannot recover on a quantum mertuit for labor expended on partial performance ; Johnson v. Folasefeldt, 106 Minn. 202, 118 N. W. 797, 20 L. R. A. (N. S.) 1069; Mikolajewski v. Pugell, 62 Misc. 449, 114 N. Y. Supp. 1084 ; contra, if the part performance is beneficial to the other party ; Cleveland, C., C. & St. L. R. Co. v. Scott, 39 Ind. App. 420, 79 N. E. 226.