45 S HARVARD LAW REVIEW. tract to be incompetent for every purpose. Indeed, in some States, the very terms of the statute would seem to cover the point, the provision being not only that certain contracts not evidenced by certain written forms shall be deemed invalid, but, in addition, that no oral evidence of their contents shall be introduced. Thus, for instance, the Civil Code of California (Section 1624) declares that " the following contracts are invalid, unless the same, or some note or memorandum thereof, be in writing," etc. The Code of Civil Procedure of the same State (Section 1973), in that part of the Code which is supposed to represent a Code of Evidence, provides that " In the following cases the agreement is invalid, unless the same, or some note or memorandum thereof, be in writing," etc. " Evidence, therefore, of the agreement cannot be received without the writing or secondary evidence of its contents." But I do not know of any case that raises the question in that form. A rather curious distinction is suggested in the case of Kimmons V. Oldham,^ where plaintiff and defendant were stockholders in a Turnpike Company, and agreed orally with each other that plaintiff should raise money for the use of the company on his own note, payable after a year, with the right to look to the defendant for contribution. The note was given according to agreement, and paid at maturity, and to the action to compel contribution the defendant pleaded that the contract was oral, and one which by its terms was not to be performed within a year. Plaintiff insisted that there had been part performance. Indeed, although it was characterized by the court as a case of part performance, it was in fact one of complete performance on one side, but no point seems to have been made of that. The court repudiates the doctrine of part performance for all actions at law, and as to suits in equity restricts the doctrine to bills for the specific performance of con- tracts for the sale of land, saying, incidentally, that when the fail- ure to complete contracts of sale would operate as a fraud," (here is an earmark of the heresy,) courts of equity may exercise a sim- ilar jurisdiction as to chattels. " One who has rendered services in execution of a verbal contract, which, on account of the statute, cannot be enforced against the other party, can recover the value of the services upon a quantum meruit." This doctrine, says the court, is not universal in its application, but is limited to cases in which the goods delivered, consideration paid, or services rendered 1 27 W. Va. 258.
