[256]*256By the Court,
Coleman, C. J.:
This is an action to recover damages for an alleged breach of contract. The complaint as amended pleads a written lease of certain lands for a period of five years, of date August 23, 1915, and also an oral contract whereby it is alleged the defendant agreed, as an inducement to the making of the lease, to furnish to plaintiffs, for a period of five years (during the term of the lease), without charge, sufficient horses to cultivate the land so leased and to harvest the crops. It is alleged in the complaint that plaintiffs entered into possession of the lands leased on November 14, 1915, and during the year 1916 cultivated and harvested a crop and surrendered one-third thereof to defendant as rental; that plaintiffs requested defendant to furnish them horses to plow and prepare lands for the crop of 1917, but that defendant refused to furnish the necessary horses, to wit, forty head; that because of such refusal plaintiffs rented fourteen head of horses at an outlay of $893; that they were damaged in the sum of $7,339 because of the failure to get the balance of the horses; and it contains certain other matters not necessary to state. An answer was filed denying the execution of the verbal contract; denying all other material allegations of the complaint, except execution of the written lease; pleading the statute of frauds, and setting up two causes of action as counter-claims. The reply admits the indebtedness' pleaded in the counter-claims.
Upon the trial of the case, before a jury, plaintiffs offered evidence tending to prove that the defednant company orally stipulated and agreed with the plaintiffs to furnish sufficient horses to plow the ground leased; that in June, 1916, they demanded of defendant horses to prepare the land for the crop of 1917; that forty head of horses were necessary for the seeding and harvesting of the crop of 1917; that defendant refused to furnish the same, or any part thereof; that the plaintiffs. hired fourteen head at an expense of $893, and that, because of defendant’s refusal to furnish said forty [257]*257head of horses, plaintiffs had been damaged in a large sum of money.
The defendant obj ected- to the testimony so offered, for the reason that such agreement relative to the furnishing of horses, not being in writing and not to be performed within one year, was within the statute of frauds (Rev. Laws, 1075), and null and void. The trial judge overruled the objections, to which ruling exceptions were taken. From a judgment in favor of plaintiffs, defendant has taken this appeal.
It is the contention of appellant that the judgment must be reversed, because the oral contract relied upon being for five years was within the statute of frauds, and null and void. It is not contended by respondents that the contract was one which was to be completed within a year, but it is asserted that- it is taken out of the operation of the statute of frauds by partial performance.
1-2. Learned counsel have made in this court, as they no doubt did in the trial court, a very ingenious argument in support of their contention, and one which would appeal to and sway a trial judge who, in the bustle and rush incident to a jury trial, has.not the time to give mature consideration to such arguments. After much reflection and investigation, we are convinced that the contention of the learned counsel cannot be sustained. The doctrine of part performance does not apply to contracts of the character here in question, but to contracts relating to land, when not to enforce the same would result in a fraud being perpetrated upon a party who has partially performed. The statute in question is aimed exclusively to the time of performance, and not to the character or subject-matter of the contract. The rule applicable to the situation here pre-sented is enunciated in Pomeroy on Contracts (2d ed.) p. 141, as follows:
“The clause relating to contracts not to be performed within a year from’ the making thereof seems, by its very terms, to prevent any validating effect of part [258]*258performance on all agreements embraced within it. As the prohibition relates not to the subject-matter, nor to the nature of the undertaking, but to the time of the performance itself, it seems impossible for any part performance to alter the relations of the parties, by rendering the contract one which, by its terms, may be performed within the year. It has, indeed, been held in some cases that, if all the stipulations on the part of the plaintiff are to be performed within a year, an action will lie for a breach of the defendant’s promise, although it was not to be performed within the year and was not in writing. In all these cases, however, the promise of the defendant was simply for the payment of the money consideration, which might, in every instance, have been sued for and recovered upon his implied promise; and the doctrine itself has been expressly and emphatically repudiated by numerous other decisions.”
This rule is recognized by ample authority. In Osborne v. Kimball, 41 Kan. 187, 21 Pac. 163, in considering just such a contention as is here made, the court says:
“The doctrine of partial performance is not applicable to this class of contracts. It is confined only to those relating to lands, the nonexecution of which would operate as a fraud upon the party who had made partial performance to such an extent that he cannot be reasonably compensated in damages. It is an equitable principle, frequently invoked in actions for the specific performance of parol contracts for the purchase of land, under which possession had been taken, improvements made, and where there has been payment or partial payment of the purchase price. The courts are slow to introduce additional exceptions, or to depart further from the strict letter of the statute of frauds, and even in the contracts of the class mentioned full payment of the purchase money is not a sufficient performance to take them out of the statute. Nay v. Mograin, 24 Kan. 80. We have heretofore had occasion to deny the enforcement of contracts other than those relating to [259]*259land, and which were not to be performed within one year, where they had been partially performed, and we see no reason to extend the doctrine of enforcing such oral contracts upon the ground of part performance.”
In another case in which the question arose the court used the following language:
“The respondent insists that there was such part performance both of the logging contract and of the hauling contract as to take them out of the statute of frauds. The doctrine of part performance, however, has no application to this clause of the statute of frauds. In the nature of the case, where the statute is directed solely to the time of performance and not to the character or subject-matter of the contract, part performance could not remove the ban of the statute without in effect repealing the statute.” Union S. & T. Co. v. Krumm, 88 Wash. 20, 152 Pac. 681.
The case of Conoly v. Harrell, 182 Ala. 243, 62 South. 511, is also in point. Plaintiff and defendant entered into an oral agreement for the employment of plaintiff for a period exceeding one year, wherein it was agreed that in addition to a monthly salary the plaintiff should receive one-fourth of the net profits of the business. The court said :
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[256]*256By the Court,
Coleman, C. J.:
This is an action to recover damages for an alleged breach of contract. The complaint as amended pleads a written lease of certain lands for a period of five years, of date August 23, 1915, and also an oral contract whereby it is alleged the defendant agreed, as an inducement to the making of the lease, to furnish to plaintiffs, for a period of five years (during the term of the lease), without charge, sufficient horses to cultivate the land so leased and to harvest the crops. It is alleged in the complaint that plaintiffs entered into possession of the lands leased on November 14, 1915, and during the year 1916 cultivated and harvested a crop and surrendered one-third thereof to defendant as rental; that plaintiffs requested defendant to furnish them horses to plow and prepare lands for the crop of 1917, but that defendant refused to furnish the necessary horses, to wit, forty head; that because of such refusal plaintiffs rented fourteen head of horses at an outlay of $893; that they were damaged in the sum of $7,339 because of the failure to get the balance of the horses; and it contains certain other matters not necessary to state. An answer was filed denying the execution of the verbal contract; denying all other material allegations of the complaint, except execution of the written lease; pleading the statute of frauds, and setting up two causes of action as counter-claims. The reply admits the indebtedness' pleaded in the counter-claims.
Upon the trial of the case, before a jury, plaintiffs offered evidence tending to prove that the defednant company orally stipulated and agreed with the plaintiffs to furnish sufficient horses to plow the ground leased; that in June, 1916, they demanded of defendant horses to prepare the land for the crop of 1917; that forty head of horses were necessary for the seeding and harvesting of the crop of 1917; that defendant refused to furnish the same, or any part thereof; that the plaintiffs. hired fourteen head at an expense of $893, and that, because of defendant’s refusal to furnish said forty [257]*257head of horses, plaintiffs had been damaged in a large sum of money.
The defendant obj ected- to the testimony so offered, for the reason that such agreement relative to the furnishing of horses, not being in writing and not to be performed within one year, was within the statute of frauds (Rev. Laws, 1075), and null and void. The trial judge overruled the objections, to which ruling exceptions were taken. From a judgment in favor of plaintiffs, defendant has taken this appeal.
It is the contention of appellant that the judgment must be reversed, because the oral contract relied upon being for five years was within the statute of frauds, and null and void. It is not contended by respondents that the contract was one which was to be completed within a year, but it is asserted that- it is taken out of the operation of the statute of frauds by partial performance.
1-2. Learned counsel have made in this court, as they no doubt did in the trial court, a very ingenious argument in support of their contention, and one which would appeal to and sway a trial judge who, in the bustle and rush incident to a jury trial, has.not the time to give mature consideration to such arguments. After much reflection and investigation, we are convinced that the contention of the learned counsel cannot be sustained. The doctrine of part performance does not apply to contracts of the character here in question, but to contracts relating to land, when not to enforce the same would result in a fraud being perpetrated upon a party who has partially performed. The statute in question is aimed exclusively to the time of performance, and not to the character or subject-matter of the contract. The rule applicable to the situation here pre-sented is enunciated in Pomeroy on Contracts (2d ed.) p. 141, as follows:
“The clause relating to contracts not to be performed within a year from’ the making thereof seems, by its very terms, to prevent any validating effect of part [258]*258performance on all agreements embraced within it. As the prohibition relates not to the subject-matter, nor to the nature of the undertaking, but to the time of the performance itself, it seems impossible for any part performance to alter the relations of the parties, by rendering the contract one which, by its terms, may be performed within the year. It has, indeed, been held in some cases that, if all the stipulations on the part of the plaintiff are to be performed within a year, an action will lie for a breach of the defendant’s promise, although it was not to be performed within the year and was not in writing. In all these cases, however, the promise of the defendant was simply for the payment of the money consideration, which might, in every instance, have been sued for and recovered upon his implied promise; and the doctrine itself has been expressly and emphatically repudiated by numerous other decisions.”
This rule is recognized by ample authority. In Osborne v. Kimball, 41 Kan. 187, 21 Pac. 163, in considering just such a contention as is here made, the court says:
“The doctrine of partial performance is not applicable to this class of contracts. It is confined only to those relating to lands, the nonexecution of which would operate as a fraud upon the party who had made partial performance to such an extent that he cannot be reasonably compensated in damages. It is an equitable principle, frequently invoked in actions for the specific performance of parol contracts for the purchase of land, under which possession had been taken, improvements made, and where there has been payment or partial payment of the purchase price. The courts are slow to introduce additional exceptions, or to depart further from the strict letter of the statute of frauds, and even in the contracts of the class mentioned full payment of the purchase money is not a sufficient performance to take them out of the statute. Nay v. Mograin, 24 Kan. 80. We have heretofore had occasion to deny the enforcement of contracts other than those relating to [259]*259land, and which were not to be performed within one year, where they had been partially performed, and we see no reason to extend the doctrine of enforcing such oral contracts upon the ground of part performance.”
In another case in which the question arose the court used the following language:
“The respondent insists that there was such part performance both of the logging contract and of the hauling contract as to take them out of the statute of frauds. The doctrine of part performance, however, has no application to this clause of the statute of frauds. In the nature of the case, where the statute is directed solely to the time of performance and not to the character or subject-matter of the contract, part performance could not remove the ban of the statute without in effect repealing the statute.” Union S. & T. Co. v. Krumm, 88 Wash. 20, 152 Pac. 681.
The case of Conoly v. Harrell, 182 Ala. 243, 62 South. 511, is also in point. Plaintiff and defendant entered into an oral agreement for the employment of plaintiff for a period exceeding one year, wherein it was agreed that in addition to a monthly salary the plaintiff should receive one-fourth of the net profits of the business. The court said :
“It appears from the bill that the monthly salary of complainant was paid to him up to November 1, 1907, for twelve months after the service began November 1, 1906. The contract alleged was an entirety. It was indivisible. Martin v. Massie, 127 Ala. 504, 29 South. 31. The partial (not complete) performance of the contract did not take it out of the statute of frauds. Scoggin v. Blackwell, 36 Ala. 351; Treadway v. Smith, 56 Ala. 345. The ground of the demurrer asserting that the agreement relied on was obnoxious to the statute of frauds should have been sustained.”
In a note to Diamond v. Jacquith, L. R. A. 1916d, 880, the editor says:
“The rule that. part performance will prevent the operation of the statute so far as performance has [260]*260gone, can, by the nature of things, have no application to actions for the breach of contract. In such actions recovery is based not upon what has been done under the contract but upon the loss accruing from what has not been done. Therefore, even in jurisdictions which have adopted that rule, there can be found no ground •upon which to base a right of recovery for the breach of a contract not to be performed within a year. It may consequently be stated as a rule without exception that the part performance of services under a parol contract not to be performed within a year does not remove the contract from the operation of the statute of frauds, so that an action may be maintained for its breach, either by the master or servant.”
But counsel for respondent strenuously contend that the defendant should be estopped from pleading and urging the statute of frauds, and rely upon the case of Seymour v. Oelrichs, 156 Cal. 782, 106 Pac. 88, 134 Am. St. Rep. 154. That was a case in which Seymour, who had a life position as captain of detectives in San Francisco, at a monthly salary of $250, entered into an oral agreement with the defendants whereby he was to resign as captain of detectives and accept a position with them for ten years at a monthly salary of $300. The defendants repudiating the contract, Seymour brought suit. The defendants pleaded the statute of frauds. The court held that because of the fact that Seymour had been induced to give up his life position, to which he could not be reinstated, defendants’ refusal to comply with the verbal agreement operated as a fraud upon the plaintiff, and sustained the plea of estoppel.
The court said:
“The claim of plaintiff is not that mere part performance of a contract for personal services which by its terms is not to be performed within a year, ‘invalid’ under our statute because not evidenced by writing, renders the same valid and enforceable. Such a claim would, of course, find no support in the authorities. Browne on Statute of Frauds, sec. 448. He necessarily [261]*261is compelled to rely solely on the claim that defendants by their conduct and promises, upon which he was entitled to and did rely, having induced him to give up his life position in the police department in order to enter their employ for a term of years at $300 a month, on the assurance from them that they would give him a written contract for such time and amount, and it being impossible for him to be placed in statu quo, are estopped from now setting up the statute of frauds as a defense to his action on the contract. Under this claim, the fact of part performance by plaintiff plays no part whatever. It was the change of position caused by his resignation from the police department upon which his claim wholly rests, and this resignation was, of course, no part of the performance of the contract of service, but was something that must be done by plaintiff before he could begin to perform, as was known to the' defendants. Plaintiff’s case, in this regard, would be just as strong if after his resignation he had been prevented by defendants from beginning to perform.
“The right of courts of equity to hold a person estopped to assert the statute of frauds, where such assertion would amount to practicing a fraud, cannot be disputed. It 'is based upon the principle ‘thoroughly established in equity, and applying in every transaction where the statute is invoked, that the statute of frauds, having been enacted for the purpose of preventing fraud, shall not be made the instrument of shielding, protecting or aiding the party who relies upon it in the perpetration of a fraud or in the consummation of a fraudulent scheme.’ 2 Pom. Eq. Jur., sec. 921. It was said in Glass v. Hulburt, 102 Mass. 24, 35, 3 Am. Rep. 418: The fraud most commonly treated as taking an agreement out of the statute of frauds is that which consists in setting up the statute against its enforcement, after the other party has been induced to make expenditures, or a change of situation in regard to the subject-matter of the agreement, or upon the supposition that it was to be carried into execution, and the [262]*262assumption of rights thereby to be acquired; so that the refusal to complete the execution of the agreement is not merely a denial of rights which it was intended to confer, but the infliction of an unjust and unconscientious injury and loss. In such case, the party is held, by force of his acts or silent acquiescence, which have misled the other to his harm, to be estopped from setting up the statute of frauds.’ ”
3. Accepting the rule laid down in the Seymour case for our guidance in this case (and we know of no case more favorable to the plaintiffs), without expressing any view as to its correctness, still the plea of estoppel is not available. The Seymour case turned upon the proposition that it was the change of position caused by Seymour’s resignation. No change of position on the part of the plaintiffs is alleged in the complaint, or proven, nor is there any allegation or proof of any act or acts or silent acquiescence of defendant which misled the plaintiffs. They had notice as early as June, 1916, that the defendant refused to furnish horses to seed the crop of 1917. They hired the fourteen horses mentioned with knowledge of defendant’s refusal to furnish horses. It certainly cannot be said that they were misled in hiring the horses, by the conduct or silent acquiescence of the defendant, nor were they led to believe by such silent acquiescence that they would get any horses whatever for the seeding and harvesting of the 1917 crop, which is the big item of damage sought to be recovered. We think the court erred in admitting the evidence, for which reason the judgment must be reversed.
It is so ordered.