CLELLAND DAVID COLLINS, JR.,               )
and wife, CAROL V. COLLINS,                )
                                           )
       Plaintiffs/Appellee,                )
                                           )   Appeal No.
                                           )   01-A-01-9702-CH-00108
VS.                                        )
                                           )   Smith Chancery
                                           )   No. 5992
ROGER V. WELLBROOK and wife,               )
CAROLE I. WELLBROOK,                       )

       Defendants/Appellants.
                                           )
                                           )
                                                                 FILED
                                                                September 17, 1997
                      COURT OF APPEALS OF TENNESSEE
                        MIDDLE SECTION AT NASHVILLE              Cecil W. Crowson
                                                                Appellate Court Clerk

APPEALED FROM THE CHANCERY COURT OF SMITH COUNTY
AT CARTHAGE, TENNESSEE

THE HONORABLE C. K. SMITH, CHANCELLOR




JACKY O. BELLAR
212 Main Street
P. O. Box 332
Carthage, Tennessee 37030
       Attorney for Plaintiffs/Appellees

JAMES B. DANCE
216 N. Main Street
P. O. Box 278
Carthage, Tennessee 37030
       Attorney for Defendants/Appellants




                              AFFIRMED AND REMANDED




                                               BEN H. CANTRELL, JUDGE


CONCUR:
TODD, P.J., M.S.
KOCH, J.




                                 OPINION
               Appellants present one issue for our review: Whether the trial court

erred in finding that the statute of frauds did not bar appellees' recovery of $10,000

plus interest loaned to appellants pursuant to an oral contract. Though this contract

falls within the statute of frauds, we find that, under the circumstances of this case,

appellants are equitably estopped from relying on the statute to avoid repayment of

the loan under the terms of the contract. Accordingly, we affirm the decision of the

trial court.



                                           I.



               David Collins and Roger Wellbrook befriended one another during their

years together serving in the armed forces. Along with their wives, Carol Collins and

Carole Wellbrook, the men made retirement plans to purchase and to operate a farm

in Smith County, Tennessee. With no written agreement, the Collinses and the

Wellbrooks formed a partnership and commenced a farming operation known as

Collinbrook Farm which was in the business of raising cattle and growing apples.

Subsequent to and independent of a fifty-fifty percent purchase of the farm land in

1984, each of the couples was to contribute $35,000 to the partnership. However,

because the Wellbrooks were not able to pay $10,000 of their half of the investment,

sometime in 1989 the Collinses agreed to loan them this money at ten percent

interest. Later, Carol Collins put an additional $17,500 into the partnership at which

time the parties agreed to become sixty-forty percent partners with the Collinses

having the greater interest.



               There is no dispute that the $10,000 loan was made to the Wellbrooks.

In his testimony, Mr. Wellbrook readily admits that he did borrow the money and that

the loan was to carry interest at ten percent per year. He said that the parties orally

agreed that the loan was not to be repaid for five years. Mr. Collins' testimony

regarding the loan differed only in that he said that the term was originally three years


                                          -2-
with an option for the Wellbrooks to extend it to five years which they did take. In

accord with Mr. Wellbrook's testimony, Mr. Collins testified that the loan was to be

repaid by one lump sum payment at the end of the loan term rather than by monthly

installments. It was Mr. Collins' position that the loan was a personal loan from his

personal assets which the Wellbrooks invested into the partnership. He said that

there was only one transaction which was in the form of a capital contribution made

to the business by the Collinses.



              In June of 1992, Mr. Wellbrook experienced medical problems which

disabled him from further work on the farm. Apparently, after stopping work, he

agreed to the Collinses' continued efforts on the farm while he maintained ownership

of forty percent of the farm's assets including orchards, equipment, and cattle. When

the Collinses finally decided to quit the operation, they sold some of the items owned

by the farming operation keeping the money for themselves in order to partially satisfy

the debt owed them by the Wellbrooks. When Mr. and Mrs. Collins filed the instant

lawsuit for partition and sale of the farm as well as the division of all other partnership

assets, the Collinses requested that the balance of the debt due them be deducted

from the Wellbrooks' share of money from the division. Before the case came to trial

on June 3, 1996, the real property had been sold and the proceeds distributed to the

satisfaction of the parties. In addition, the personal property had been sold and the

only issue remaining was the equitable division of the proceeds received from the sale

of these personal assets.



              In the trial court below, the judge first found that the Wellbrooks were

indebted to the Collinses in the amount of $19,610 which was the amount of the

$10,000 loan plus the ten percent interest which had accumulated by the time of the

trial. As for the money owed to the Wellbrooks, the court accepted the undisputed

proof presented by the Collinses that they had received $23,166.48 for the equipment

and other personal assets of the farm that were sold between 1992 and 1994. The


                                           -3-
court found that the Wellbrooks' forty percent of this $23,166.48 sum computed to

$9,266.59. Because the Collinses actually received this $9,266.59 of the Wellbrooks'

money early, the court did not think it fair that the Wellbrooks continue to be charged

ten percent interest on this portion once it was "paid back."         The court then

determined that, due to the fact that the Collinses had this $9,266.59 early, $2,658.08

worth of interest never accrued on the loan thus necessitating that the Wellbrooks be

credited not only the $9,266.59 kept by the Collinses upon the sale of the property but

an additional $2,658.08 totaling $11,924.67. The court thus set off the $19,610 owed

to the Collinses by the Wellbrooks on the loan by the $11,924.67 owed to the

Wellbrooks by the Collinses from the property sold and interest which never accrued.

Therefore, the final judgment was $19,610 minus $11,924.67 equaling $7,685.33

owed by the Wellbrooks to the Collinses.



              On appeal, the Wellbrooks dispute only one aspect of the lower court's

holding -- they argue that the statute of frauds prohibits recovery of the $19,610.00

amount due on the oral loan made to them by the Collinses. They therefore request

that this court reverse the trial court's award with respect to the loan and enter a

judgment for them in the amount of $11,924.67.




                                          II.



              The pertinent portion of the statute of frauds provides that "[n]o action

shall be brought . . . [u]pon any agreement or contract which is not to be performed

within the space of one (1) year from the making thereof; unless the promise or

agreement, upon which such action shall be brought, or some memorandum or note


                                         -4-
thereof, shall be in writing, and signed by the party to be charged therewith, or some

other person by him thereunto lawfully authorized."           Tenn. Code Ann.        §

29-2-101(a)(5) (Supp. 1996). The Wellbrooks assert that the evidence clearly shows

that the loan agreement at issue was an oral agreement which was not to be repaid

within the space of one year. The Collinses counter with a looser interpretation of the

statue of frauds arguing that because the partnership could have dissolved within a

year and the loan could have been repaid within a year, this loan is outside of the

statute. In the alternative, they contend that the doctrine of equitable estoppel

prohibits the Wellbrooks from relying on the statute of frauds to avoid repayment of

the loan.



              There is no question that the defendants should repay the $10,000.00.

The only question is whether the plaintiff is entitled to collect the interest the

defendants orally promised to pay. We do not think any court in this state would allow

a borrower, who admits he borrowed a specific sum of money, to keep the money he

received because the statute of frauds barred an action on the promise to repay it.

In such cases the lender clearly has an action for money had and received. Steelman

v. Ford Motor Credit Co., 911 S.W.2d 720 (Tenn. App. 1995). The action is not on the

contract but on the proposition that in justice and fairness the money belongs to the

lender. Id.



              In this case, however, the chancellor allowed an action on the oral

promise to repay the money with interest. For a number of reasons we think the

chancellor correctly held that the promise was enforceable, despite the provisions of

Tenn. Code Ann. § 29-2-101(a)(5)(Supp. 1996).



              In this state the doctrine of part performance “removes this agreement

from the mandate of the statute of frauds.” Trew v. Ogle, 767 S.W.2d 662 at 665




                                         -5-
(Tenn. App. 1988). In contracts not involving real estate1 part performance by the

plaintiff turns an otherwise unenforceable agreement into one that may be enforced.

Buice v. Scruggs Equipment Co., 194 Tenn. 129, 250 S.W.2d 44 (1952).2 This

doctrine is related to equitable estoppel where one party has induced the other to

change his position so as to incur an “unjust and unconscious injury and loss, in case

the defendant is permitted after all to rely upon the statutory defense.” Id. at 48. See

also GRW Enter., Inc. v. Davis, 797 S.W.2d 606 (Tenn. App. 1990); Baliles v. Cities

Serv. Co., 578 S.W.2d 621 (Tenn. 1979).3



                    The judgment of the court below is affirmed and the cause is remanded

to the Chancery Court of Smith County for any further necessary proceedings. Tax

the costs on appeal to the appellants.




                                                       _____________________________
                                                       BEN H. CANTRELL, JUDGE




         1
        See Baliles v. Cities Serv., 578 S.W .2d 621 (Tenn. 1979) and Cobble v. Langford, 190 Tenn.
385, 230 S.W .2d 194 (1 950) for the rule with res pect to rea l pro perty.

         2
             For the spec ific rules with respect to the sale of goods see T enn. Cod e Ann. § 47-2 -201(3).

         3
          These precedents supply sufficient reasons for upholding the lower court’s decision. Perhaps
a more fundamental reaso n lies in an interpretation of the statute itself. The section of the statute of
frauds on w hich the appe llants rely prohibits an action on “any agreement or contract which is not to be
performed within the space of one (1) year from the m aking thereof.” A majority of the courts in this
country hold that the statute applies only to contracts not to be performed on either side with in the year.
See 72 Am.Jur.2d Statute of Frauds § 19. A co ntrac t to be fully performed on one side within the year
is not covered by the statutory languag e. Id. This has been called the “one side rule”, City of Tyler v.
St. Louis Southwestern Ry. Co. of Texas, 91 S .W . 1 (1906), and it is the interpretation the E nglish cou rts
gave to the o riginal sta tute of frau ds. Id. The lang uag e of the En glish statute with respe ct to contra cts
not to be performed within a year is the same as the language in Tenn. Code Ann. § 29-2-
101(a)(5)(Supp. 1996). T he Kentu ck y Suprem e C ourt state d what se em s to us to be a sensible
interpretation of the statute: “It seems to us that the statute was intended and does pro perly ap ply only
to an agreement that is not to be performed by either party within a year, but not to one which is to be
or has been performed by one or either of them within such period.” Dant v. Head, 13 S.W . 1073, 1075
(Ky. 189 0). See also Beacon Fed. Sav. & Loan Ass’n v. Panoramic Enter., Inc., 8 W is.2d 550, 99
N.W .2d 696 (195 9); Puget M ill Co. v. Kerry, 183 Wash. 542, 49 P.2d 57 (1 935 ); W ood & Brooks Co. v.
D.E. Hewitt Lumber Co., 89 W .Va. 254, 109 S.E. 242 (1921).

         It could be argued that the case of Thom pson v. Fo rd, 145 Ten n. 335, 236 S.W . 2 (1921), held
a con tract to be unenforceable even though one party to the agreement had fully performed. That issue,
howeve r, was not raised in that c ase and we are not persuaded that th e case is autho rity fo r a rule
contrary to the “one side rule.” The same argum ent could be made with respect to Trew v. O gle, 767
S.W .2d 662 (Tenn. App. 1988). W e do not adopt the “one side rule” in this case because it was not
raised by the parties and the precedents cited are sufficient to sustain the decision below.

                                                     -6-
CONCUR:




_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION




_______________________________
WILLIAM C. KOCH, JR., JUDGE




                                  -7-
