Smith v. Phillips

43 A. 183, 69 N.H. 470

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1898
• Status: Published

Opinion

Parsons, J.

A parol agreement to lease land for a term of years is a contract to convey an interest in lands within the statute of frauds (P. S., c. 187, s. 12; Ib., c. 215, s. 1; Webster v. Blodgett, 59 N. H. 120), and no action at law can be maintained upon it. P. 8., c. 215, s. 1; Lane v. Shackford, 5 N. H. 130, 133; Ayer v. Hawkes, 11 N. H. 148, 150; Ham v. Goodrich, 33 N. H. 32, 35; S. C., 37 N. H. 185; Luey v. Bundy, 9 N. H. 298; Seavey v. Drake, 62 N. H. 393, 394. Part performance of such an agreement does not take the case out of the statute so as to authorize the recovery of damages in an action at law for a breach of the oral contract. Webster v. Blodgett, Lane v. Shackford, Ayer v. Hawkes, supra; Emery v. Smith, 46 N. H. 151, 155; Kidder v. Hunt, 1 Pick. 328; Thompson v. Gould, 20 Pick. 134, 138; Adams v. Townshend, 1 Met. 483; Hibbard v. Whitney, 13 Vt. 21, 24; Hawley v. Moody, 24 Vt. 603, 605; Buck v. Pickwell, 27 Vt. 157, 166, 167; Abbott v. Draper, 4 Denio 51, 53; Eaton v. Whitaker, 18 Conn. 222, 231; Chit. Cont. (10th Am. ed.) 329; 2 Par. Cont. (4th ed.) *340; Bro. St. Pr. (5th ed.), s. 451. It is not necessary to inquire whether in equity the plaintiff might have had a decree for a specific performance of the oral contract to lease. He has made no claim to such relief, and by removing the building and yielding his possession has abandoned such equitable title as he had as lessee and put himself into a position where such a decree would afford him no relief. No claim is made except upon the contract, and the case discloses no grounds upon which any action can be maintained. Cocheco Aqueduct Association v. Railroad, 59 N. H. 312; Lane v. Shackford, Ham v. Goodrich, Emery v. Smith, supra; Crawford v. Parsons, 18 N. H. 293, 294; Miller v. Tobie, 41 N. H. 84. The plaintiff is entitled to judgment for $9.79.

Case discharged.

All concurred.