
    Mathews vs. Davis.
    A party making improvements on land, held by void contract of purchase, is not entitled to recover the value of such improvements in an action of assumpsit. He can recover, however, in chancery the value of such improvements as may have added to the permanent value of the estate.
    This is an action of assumpsit which was brought by Davis against Mathews, in the circuit court of Robertson county.
    The plaintiff declared for work and labor done and materials furnished, and proved on the trial, at the-term, 1845, Martin, J. presiding, that by verbal contract he had purchased of defendant one hundred acres of land, and had been placed in possession of the same; that with the knowledge and approbation of defendant he built a dwelling house, smoke house, kitchen, and made other valuable improvements on the land; that defendant witnessed the progress of those improvement's from time to time, and acquiesced in the acts of plaintiff as rightful. When an attempt was made to run out the land, the plaintiff and defendant disagreed as to the lines, and defendant repudiated the contract and refused to convey.
    The Judge charged the jury that where one entered into possession of land under a parol agreement of purchase and makes improvements thereon, with the knowledge and approbation of the owner, and the owner refuses afterwards to make a conveyance in conformity with the parol contract, an action of assumpsit would lie against the owner of the land, for the value of the improvements thus made, and the criterion of damages would be not the increased value of the land to the owner, but the value of the improvements put upon it, deducting from the value of the improvements the value of the use of the land and improvements during the time the plaintiff occupied the same.
    The jury found a verdict for the plaintiff. A motion for a new trial being made and overruled, and judgment rendered, the defendant appealed.
    Boyd, for plaintiff in error.
    One who enters upon a tract of land under a parol contract of purchase cannot sustain an action of assumpsit for the value of the improvements he may make upon it, because he makes the improvements for himself, not the owner of the land, and there is no contract for payment. — Nelson vs. Allen & Harris, 1 Yerg. 380; 10 Yerg. 477.
    The improvements as soon as made vest in the owner of the land, and a court of equity can make him pay their value if he has been guilty of fraud or acquiescence. — Herring & Bird vs. Pollard, 4 Hump; 1 Story’s Rep. 478, 495.
    If entitled to recover at all, he should only be allowed the value of his improvements, so far as they augmented the property in value.' — 2 Kent, 336.
    
      Lowe, for defendant in error.
    1. He contended that an action of assumpsit was an equitable action for the recovery of what ex equo and bono. was due. — Bacon tit. Assumpsit, Moses vs. McFarlane, 3 Burrow; and that though there were no express promise to pay the value of the improvements, the law would imply a promise. The defendant in error went into possession by consent of plaintiff in error. He made the improvements with his approbation, and it was a fraud to attempt to get the value of defendant’s labor without compensation. The true criterion of damages was the value of defendant’s labor. The value of his labor will be the extent of his loss, and that loss is a consideration sufficient to support a contract or imply a promise as well as a gain to the plaintiff in error. — 3 Hump. If, however, he is not entitled to the value of what he has lost, he is entitled to what the other party has gained. “No one shall gain by another’s loss.” — Karnes’ Principles of Equity. The defendant in error is entitled to recover to that extent by the first principles of natural equity.
    • 2. He contended that a court of law was the proper forum for the recovery of damages. Whether the criterion of damages be the loss of the defendant in error, or the gain of plaintiff in error, the value of the erections or the value of the labor, a jury is more competent to judge of and determine the questions involved than a chancellor. It is the peculiar well ascertained and most appropriate province of a jury to fix the value of labor and of agricultural erections and improvements. “They are supposed to be peculiarly well qualified by their experience of the conduct, affairs and dealings of mankind and the manners and customs of society,” for the determination of such questions of fact. — 1 Star-kie. “In this respect the law confides implicitly in their knowledge, experience and discretion.”
    He contended, that if the defendant in error had any claim against the plaintiff in error, arising out of the subject matter of this suit, it was a matter unfit for equitable jurisdiction and was only the proper subject for the determination of a jury.
    He, therefore, claimed an affirmance of the judgment of the. circuit coui’t.
   Green, J.

delivered the opinion of the court.

This is an action of assumpsit for- work and labor done, and for materials furnished.

On the trial, it appeared that Davis made a verbal contract with Mathews for the purchase of one hundred acres of land, and that he went on the land and put up some buildings for himself, but that when the parties went to run out the land they disagreed as to the manner it was to be run out, and the contract was never reduced to'writing. The plaintiff raised an account against the defendant for work done and materials furnished in the erection of these houses, and proved that the prices charged were reasonable.

The court charged, that a party making improvements on land, under a verbal contract for the purchase of it, was entitled to recover in this form of action, the value of such improvements.

This is the first case that has come before us, where an ■attempt has been made to recover, in an action at law, for improvements made on land held by a contract void by the statute of frauds. Chancellor Walworth, of New York, denied relief in such a case, where the party sought it in equity.—Putnam vs. Richie, 6 Paige’s Rep. 390. But Mr. Justice Story entertained a bill for improvements, in the case of Bright vs. Boyd, 1 Story’s Rep. 478. He said, “The denial of all compensation to such a bona fide purchaser, in such a case, where he has manifestly added to the permanent valúe of an estate, by his meliorations and improvements, is contrary to the first principles of equity.”

The case of Bright vs. Boyd is the first, so far as we know, in which compensation has ever been given to a party seeking to make the true owner of the land liable. That case was followed by this court, in Herring & Bird vs. Pollard’s executors, 4 Hump. Rep. 362; and reliéf was given for improvements that may have enhanced the value of the land; or, in the language of Judge Story, such meliorations as have added to the permanent value of the estate.

This is as far as any court has ever gone; and, we think, as far as any principle of equity will justify. When a contract for land is entered into, the parties know it will not be binding unless it is made in writing. Each party is equally culpable for failing to make the contract in such manner as that it will be obligatory. If the party agreeing to purchase perform labor, and make improvements, which will benefit the owner of the land, we have said, he has an equitable right to compensation. But if his work and labor, and materials, are of a character that will not benefit the owner of the estate, upon what principle of equity can it be assumed that he ought to be paid? It matters not how much labor he has employed, nor what amount he may have expended for materials, if the estate is not benefitted, he has no claim to compensation from the owner of the land. To allow him to recover, in such a case, would be to reward him for volunteering his labor on another man’s land, and to punish the owner of the soil for permitting him to do it. This cannot be done. His honor, the Judge of the circuit court, erred, therefore, when he told the jury that the plaintiff was entitled to the value of his improvements, whether they enhanced the value of the estate or not. But this only demonstrates the impracticability of such investigations in a court of law. A jury cannot judge of ameliorations, and adjust the matter between the parties. Besides, if a recovery be had in a court of law at all, it must be had for the work, labor and materials, so much as they were worth, as his honor told the jury. But we have seen this is not the criterion of compensation, and, therefore, it is unfit for a court of law, and exclusively a matter to be adjusted in equity.

Reverse the judgment.  