
    Kidder versus Hunt.
    Part performance of a paro] agreement relating to an interest in land does not take the contract out of the statute of frauds, so as to sustain an action at law for damages for the breach of the contract. But assumpsit will lie for the expenses incurred in such part performance.
    Assumpsit. The plaintiff in his 3d count set forth, that on tbe 16th of February, 1821, it was agreed between the parties, that the defendant should let to the plaintiff a certain messuage, except one half of the lower floor, for the space of five years from the 1st of March then next ensuing, and that the plaintiff should pay a yearly rent of 350 dollars, and should within a reasonable time, at his own cost, make two shops on the lower floor, &c. ; that in pursuance of the agreement, and with the consent of the defendant, the plaintiff on the 19th of February entered upon the premises and made repairs and alterations at his own cost, and continued in possession under the agreement until the 15th of March, when the defendant wrongfully entered upon him and expelled him ; whereby he was deprived of the use and advantage of the premises which would otherwise have accrued to him, and had been subjected to great trouble and loss of money expended about the premises in the performance of his promises. The 4th count was similar, but set forth more particularly the work done by the plaintiff. In the 5th it was alleged, that although the plaintiff had been at great expense in making the repairs and alterations, and was ready to become the tenant of the defendant, yet that the defendant would never let him take possession according to the agree ment.
    To these counts the defendant pleaded the St. 1783, c. 37, § 2, which is copied from the statute of frauds, 29 Car. 2, c. 3, § 4. The plaintiff demurred generally, and the defendant joined in demurrer.
    
      Sohier, for the plaintiff,
    contended that here was such a part performance of a paroi agreement as would take the case out of the statute. Inman v. Stamp, 1 Starkie, 12. The same construction is to be given to the statute by a court of law as by a court of chancery ; and since a court of chancery would decree a specific performance in a case like the present, (Sugd. Law of Vend. 73, where the authorities are collected ; Morphett v. Jones, 1 Swanst. 172,) an action at law may be sustained for damages. Lofft, 331; Boyd v. Stone, 11 Mass. Rep. 342. The case of Davenport v. Mason, 15 Mass. Rep. 85, is conclusive, that the parties cannot treat such contract as a nullity, if it has been partly executed.
    
      Hubbard and Curtis, for the defendant.
    An action on the agreement for the right of enjoying the lease is expressly prohibited by the statute. In the 17th section of the statute of Charles, provision is made for part performance ; it is, therefore, to be inferred, that the omission of such a provision in the 4th section was intentional. The plea would be valid in a court of chancery ; Hollis v. Whiteing, 1 Vern. 151; but where there has been a part performance, chancery gives relief on the ground of fraud ; which shows that an action founded upon the contract will not lie. If the plaintiff has been at expense in making repairs, he may be entitled to an action of assumpsit, to recover the money laid out. Sherburne v. Fuller, 5 Mass. Rep. 133. In Forster v. Hale, 3 Ves. jr. 713, Lord Avanley, Master of the Rolls, says, that the court have gone too far in permitting part performance to take cases out of the statute ; that they ought not to have held it evidence of an unknown agreement, but to have had the money which had been laid out repaid. The plaintiff has no remedy at law upon the contract. Jackson v. Pierce, 2 Johns. Rep. 223; Cook v. Stearns, 11 Mass. Rep. 533; Boyd v. Stone, ubi sup.; Walker v. Constable, 2 Esp. 659; S. C. 1 B. & P. 306. The case of Davenport v. Mason, on the authority of which this action was probably brought, was decided on the ground that there was a good consideration, and a promise which was not affected by any of the provisions of the statute of frauds. The remark of Wilde J., that a verbal agreement partly executed is not to be treated as a nullity, is applicable only in relation to a court of chancery. He goes on to say, that innumerable contracts have been enforced in chancery on this ground ; and that a like construction of the statute seems to have been recognized by the courts of law. He was probably led to make these observations from the remarks of Buller J. in Brodie v. St. Paul, 1 Ves. jr. 333, and of Lord Ellenborough in Crosby v. Wadsworth, 6 East, 611; who is the same judge that sat in the nisi prius case in Starkie. But the doctrine of Buller is disapproved of by Lord Eldon in Cooth v Jackson, 6 Ves. jr. 39, and by Kent C. J. in Jackson v. Pierce. A decision in support of this action would interfere with the first section of our statute ; under which, supposing every thing in these counts to be true, the plaintiff would have but a tenancy at will.
    
      
      Sohier, in reply.
    The plaintiff does .not seek for any inter est in the land ; he asks for damages for the breach of a con ■ tract which on ms part has been performed. He demands a compensation for his disappointment, and for his trouble and expenses. If he was tenant at will, then he should not have been evicted without notice, and he is entitled to damages on that ground.
   Per Curiam.

The contract declared upon is admitted to be within the statute of frauds, since it relates to an interest in land, and is not in writing. It is provided by that statute, that no action shall be maintained upon such a contract. • But it is said, that as part performance of the contract by the plaintiff is averred, and as courts of chancery will decree a specific performance of a paroi contract if there has been a part performance, so here, as we have no court of chancery with power to decree a specific performance in such cases, the plaintiff may at least recover damages for the breach of such contract; and remarks to this effect are found in some of the opinions given in the cases decided by this Court, and in England. But they are mere obiter dicta, and no case like the present has been decided in favor of supporting the action. In Cooth v. Jackson, Lord Eldon doubts exceedingly the power of the courts of common law which is said to exist, and gives very strong reasons in support of his opinion.

• There are, no doubt, cases proper for a court of chancery such as those which relate to the execution of trusts, where the common law will give a remedy by an action for damages ; and perhaps in the case of a paroi contract respecting land, where the party has been put to expense, as to his part of the contract, under circumstances which would amount to fraud by the other party, case might lie for damages for the fraud, as was intimated in Boyd v. Stone; but this action is brought upon the contract itself, and to sustain it world be indirectly to give efficacy to a contract which the legislature says shall have none. It is on the ground of fraud only that the court of chancery undertakes to decree performance of such a contract.

Certainly so much as has been expended by the plaintiff in money, or labor, may be recovered in an action for money paid, or for work and labor done for the defendant.

Plea adjudged good,. 
      
       See Ricker v Kelly, 1 Greenl. 117, 120, note; Freeport v Bartol, 3 Greenl. 340; Syler v. Eckhart, 1 Binney, 378; Billington v. Welsh, 5 Binney, 129; Miller v. Hower, 2 Rawle, 55; Jones v. Peterman, 3 Serg. & R. 546; Harris v. Knickerbocker, 5 Wendell, 638; Crocker v. Higgins, 7 Conn. 342; 2 Starkie on Evid (Metcalf’s Ed.) 600, 601, note (1).
     