
    Ossage v. Foley et al.
    
      Contracts — Oral agreement to execute lease — Statute of frauds— Part performance inapplicable in action for damages for breach — Statute applies although tort pleaded.
    
    
      1. The doctrine of part performance does not obtain in a court of law to render actionable a claim based on an oral contract concerning realty, rendered void by the statute of frauds.
    2. In an action for damages for breach of an oral agreement which is within the statute of frauds and void, an amended petition adding the allegation that a tort was committed, in that the contract was a fraud and the defendants never intended to execute it, does not, in itself, take the case out of the operation of the statute.
    [1] Statute of Fraud, 27 C. J. §428; [2] Id., § 388.
    (Decided July 16, 1923.)
    Error: Court of Appeals for Plamilton county.
    
      Mr. Lewis Wm. Diemer and Mr. T. V. Maxedon, for plaintiff in error.
    
      Messrs. Dempsey <S> Dempsey and Messrs. Creed S Creed, for defendant's in error.
   Buchwalter, J.

The action below was to recover damages for the failure and refusal of defendants to execute and deliver to plaintiff a lease for certain lands, in accordance with an oral agreement claimed to have been made between the plaintiff and the defendants.

Plaintiff alleged certain acts claimed as part performance under the contract, and also alleged that defendants were guilty of a tort in failing and refusing to reduce the oral agreement to writing and to execute and deliver the lease.

It was averred that the oral agreement provided for a lease of five years with a privilege of renewal for five additional years, and a privilege of purchase. No written agreement was executed.

The trial court sustained the demurrer to the amended petition, and, plaintiff not desiring to plead further, judgment of dismissal was entered. To reverse that judgment, error is prosecuted here.

The action is founded upon an oral agreement concerning an interest in lands, that was not to be performed within one year. By the statute of frauds, 'Section 8621, General Code, no action shall be brought to charge the defendant upon any contract concerning lands unless the agreement upon which such action is brought, or some note or memorandum thereof, shall be in writing. As the oral agreement was never reduced to writing, it is within the statute of frauds and void, unless by part performance it is taken out of its operation.

This is an action at law for damages, and plaintiff has seen fit to choose the action for damages instead of an equitable action, consequently the doctrine of part performance cannot apply.

“The doctrine of part performance obtain's in equity only, and does not avail to render a contract which is void by the statute, because unwritten or unsigned, capable of being sued on in a court of law.” Kling, Admr., v. Bordner, 65 Ohio St., 86, syllabus 5.

To the same effect is the case of Breuer v. Berold, 9 C. C. (N. S.), 350.

' It is further claimed that a tort was committed, and that the defendants never intended to execute the lease. The addition of that statement in the amended petition does not change the cause of action. If no cause of action existed, the addition of the allegation that it was a fraud, and that the defendants never intended to execute the lease, does not, in the absence of other allegations, take the case out of the statute of frauds.

Finding no error prejudicial to the plaintiff in error, the judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Cushing and Hamilton, JJ., concur.  