
    CONTRACTS — STATUTE OF FRAUDS.
    [Knox (5th) Circuit Court,
    October 12, 1906.]
    Donahue, McCarty and Taggart, JJ.
    Martin J. Murphy v. Daniel F. Adams, Admr.
    Right to Recover Payments on Uneneorcible Contract.
    A verbal contract for the conveyance of real estate, the consideration to he paid partly in labor for which an agreed sum was to be credited each ■ day upon the purchase price of the property, is unenforcible under the statute of fraud, but the party performing the labor may recover for the value of his services rendered in pursuance of the contract, provided he did not abandon or fail to perform his work through his own fault.
    [For other cases in point, see 2 Cyc. Dig., “Contracts,” §§ 1703-1738, 1880-1906. — Ed.]
    [Syllabus approved by the court.]
    Error to Knox common pleas court.
    L. B. Houck and W. M. Koons, for-plaintiff in error.
    C. V. Trott and W. A. Hosack, for defendant in error.
   PER CURIAM.

The record in this case discloses that the work performed by defendant in error’s intestate was performed by him under and in pursuance of a contract, by the terms of which he was to receive a credit of one dollar per day upon the purchase price of a certain dwelling house then to be erected by the plaintiff in error for said defendant in error’s intestate, and which was to be sold and conveyed to him for the sum of $1,050. This contract was verbal, and by reason of the statute requiring' a contract for the sale of real estate to be in writing, could, not be enforced in the courts of this state. But, notwithstanding that fact, this court is clearly of the opinion that if the plaintiff in error abandoned that contract and refused to go forward with the same, the defendant in error could recover for the estate he represents, the value of the services rendered by his intestate in pursuance of that contract; but if, on the other hand, the defendant in error’s intestate failed and refused to go forward with that work and abandoned the same through his own fault and of his own motion, then we do not think he could recover. There is practically no evidence in this record disclosing which of these parties repudiated the contract. The evidence is sufficient as to the services and the value thereof, but it is not sufficient to sustain this verdict upon the theory that the plaintiff in error abandoned the contract, and for that reason and that reason only, it is against the manifest weight of the evidence and is not sustained thereby, and the case is reversed and remanded for a new trial.

Exceptions of defendant in error noted.  