Opinion by
W. D. Porter, J.,
The plaintiff in his statement alleged as his cause of action the breach of a parol agreement to lease a lot of ground to be used as a brick yard, for a period of five years ; the rent for the first year to be 150.00, and thereafter a royalty of twenty-five cents per thousand for marketable bricks manufactured. He further averred that he went into possession and made improvements, and that he was wrongfully evicted therefrom on the first day of April, 1896. In charging the jury upon the question of the plaintiff’s right to damages the learned judge concluded in the following language, viz: “ If the plaintiff has satisfied you in the way that I have indicated, that the leasing was for five years, and that there was an eviction, then the next inquiry will be as to the measure of damages. The rule of law upon that subject is this: In determining that question you will inquire what was the fair market value of this lot of ground on the first day of April, 1896, with such improvements upon it as had been erected by the plaintiff, and what would have been the fair market value of this lot of ground on the first day of April, 1896, if the plaintiff hadnot put any improvements upon it; if you find that the improvements erected, which the plaintiff erected and which remained on the premises on the first day of April, 1896, enhanced the value of the property, the amount of that enhancement would be the measure of damages to which the plaintiff would be entitled at your hands.” The correctness of this instruction involves all the specifications of error, which it is unnecessary to notice in detail.
The parol agreement to lease was alleged to have been made in May, 1894, but there was no pretense that any writing had been signed by the party sought to be charged. The p’aintiff entered, made improvements, and remained in possession for almost two years, but no fact was alleged or proved which tended to establish that he could not be compensated in damages for a breach of the parol agreement. Every parol contract for the sale of land, or leasing the same fora term exceeding three years from the making thereof, is within the operation of the statute of frauds, unless there has been such part performance as cannot be compensated in damages. Assuming for the present that the evidence was sufficient to warrant the finding that there had been a parol agreement to lease for a term of [99]*99five years and that the plaintiff entered thereunder, he thus became a tenant at will under the statute and so continued, unless by subsequent acts of the parties the term was enlarged into a tenancy from year to year. The plaintiff never became entitled to a term of five years, and the learned court below fell into error in permitting the jury to pass upon that question: McKowen v. McDonald, 48 Pa. 441; Postlethwait v. Frease, 31 Pa. 472; Dumn v. Rothermel, 112 Pa. 262; Whiting v. Pittsburg Opera House Co., 88 Pa. 100. While the plaintiff was not entitled to a five years’ term, nor to damages for the loss thereof, he was not, however, without remedy. If upon the faith of the defendant’s agreement to execute a lease for five years, the plaintiff had expended money and performed labor which he would not otherwise have done, and of the fruits of which he was deprived by the breach of the parol contract, he is entitled to compensation for his loss. He cannot recover for the loss of his bargain, but he is entitled to be placed in a condition as favorable as that he would have occupied if the bargain had not been made. In such a case to compensate the plaintiff for all the fruits which he would have gathered if the contract had been executed, would be to annul the statute. When there has been no fraud on the part of the vendor, or the lessor, in the original contract, the measure of damages for the breach thereof is indemnity for the reasonable expenditures into which the other party has been led by the false hope held out to him. Either party has the right to refuse to execute a parol contract which is within the operation of the statute, and' the exercise of that right, by refusing to convey, is no more a fraud than the breach of any other contract to perform an act. Lessor and lessee both knew that such a contract could not be enforced; and the refusal to perform was not evidence of fraud in the original contract. It was error to submit to the jury the question of the existence of a lease, and to give them a measure of damages founded upon a supposed interest of the plaintiff in the land. He who has entered upon lands under a parol contract, void under the statute, may by his operations develop a mine or discover oil, and so add immensely to the value of the property, but the increased value of the land is not the measure of damages for a breach of the parol agreement; the rule is still compensation for the expenditures, less a reasonable allowance [100]*100for the benefits received. Since Jack v. McKee, 9 Pa. 235, and kindred cases were overruled by Hertzog v. Hertzog, 34 Pa. 418, there has been no serious departure from this rule: Dumars v. Miller, 34 Pa. 319; Harris v. Harris, 70 Pa. 170;. Sausser v. Steinmetz, 88 Pa. 324; Rineer v. Collins, 156 Pa. 342. Bowser v. Cessna, 62 Pa. 148, was the case of a public sale and was not by the later cases recognized as a departure from the rule, although Mr. Justice Sharswood, who wrote the opinion in that case, dissented in Harris v. Harris. In Maulé v. Ash-mead, 20 Pa. 482, the measure of damages was not passed upon, but in McClowry v. Croghan, 31 Pa. 22, -the rule as here given was recognized. The only improvements upon the ground at the time the plaintiff was evicted were a brick kiln and the grading of the ground to make the brick yard level. It was contended by the plaintiff that the brick kiln was a trade fixture which he was entitled to remove at any time within his term, and that he was deprived of this right because of the refusal to allow him sufficient time within which to remove the material. The value of this right was equal to the value of the materials when removed, less the cost of removal. If the plaintiff made these improvements upon the faith of a parol agreement that he should have a term of five years, and the expenditure was reasonable in view of the purposes for which the parties intended the premises to be used, they were proper for consideration in determining the amount of damages. If these improvements cost $1,200, and the right to remove the brickkiln was worth $200, the plaintiff must have contemplated a depreciation in the value of the improvements during the- term in the amount of $1,000, to be compensated for which he relied upon the enjoyment of the term. The entire term would have been for five years, but the plaintiff actually enjoyed the fruits of this expenditure for two fifths of the time during which he 'would have been permitted to use the improvements if the parol contract had been fully executed. In determining the part of this expenditure which the plaintiff would be entitled to recover, there ought to have been an allowance for the fruits of the expenditure which he had already enjoyed.
A careful review of the evidence has convinced us that it was insufficient to establish a parol contract to lease the land for five years. The plaintiff averred in his statement a verbal [101]*101arrangement under -which, the rent was to be $50.00 for the first year and thereafter a royalty of twenty-five cents per thousand for marketable bricks manufactured. The only testimony offered in support of this averment, as to the terms of the contract, was that of the plaintiff himself.
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Opinion by
W. D. Porter, J.,
The plaintiff in his statement alleged as his cause of action the breach of a parol agreement to lease a lot of ground to be used as a brick yard, for a period of five years ; the rent for the first year to be 150.00, and thereafter a royalty of twenty-five cents per thousand for marketable bricks manufactured. He further averred that he went into possession and made improvements, and that he was wrongfully evicted therefrom on the first day of April, 1896. In charging the jury upon the question of the plaintiff’s right to damages the learned judge concluded in the following language, viz: “ If the plaintiff has satisfied you in the way that I have indicated, that the leasing was for five years, and that there was an eviction, then the next inquiry will be as to the measure of damages. The rule of law upon that subject is this: In determining that question you will inquire what was the fair market value of this lot of ground on the first day of April, 1896, with such improvements upon it as had been erected by the plaintiff, and what would have been the fair market value of this lot of ground on the first day of April, 1896, if the plaintiff hadnot put any improvements upon it; if you find that the improvements erected, which the plaintiff erected and which remained on the premises on the first day of April, 1896, enhanced the value of the property, the amount of that enhancement would be the measure of damages to which the plaintiff would be entitled at your hands.” The correctness of this instruction involves all the specifications of error, which it is unnecessary to notice in detail.
The parol agreement to lease was alleged to have been made in May, 1894, but there was no pretense that any writing had been signed by the party sought to be charged. The p’aintiff entered, made improvements, and remained in possession for almost two years, but no fact was alleged or proved which tended to establish that he could not be compensated in damages for a breach of the parol agreement. Every parol contract for the sale of land, or leasing the same fora term exceeding three years from the making thereof, is within the operation of the statute of frauds, unless there has been such part performance as cannot be compensated in damages. Assuming for the present that the evidence was sufficient to warrant the finding that there had been a parol agreement to lease for a term of [99]*99five years and that the plaintiff entered thereunder, he thus became a tenant at will under the statute and so continued, unless by subsequent acts of the parties the term was enlarged into a tenancy from year to year. The plaintiff never became entitled to a term of five years, and the learned court below fell into error in permitting the jury to pass upon that question: McKowen v. McDonald, 48 Pa. 441; Postlethwait v. Frease, 31 Pa. 472; Dumn v. Rothermel, 112 Pa. 262; Whiting v. Pittsburg Opera House Co., 88 Pa. 100. While the plaintiff was not entitled to a five years’ term, nor to damages for the loss thereof, he was not, however, without remedy. If upon the faith of the defendant’s agreement to execute a lease for five years, the plaintiff had expended money and performed labor which he would not otherwise have done, and of the fruits of which he was deprived by the breach of the parol contract, he is entitled to compensation for his loss. He cannot recover for the loss of his bargain, but he is entitled to be placed in a condition as favorable as that he would have occupied if the bargain had not been made. In such a case to compensate the plaintiff for all the fruits which he would have gathered if the contract had been executed, would be to annul the statute. When there has been no fraud on the part of the vendor, or the lessor, in the original contract, the measure of damages for the breach thereof is indemnity for the reasonable expenditures into which the other party has been led by the false hope held out to him. Either party has the right to refuse to execute a parol contract which is within the operation of the statute, and' the exercise of that right, by refusing to convey, is no more a fraud than the breach of any other contract to perform an act. Lessor and lessee both knew that such a contract could not be enforced; and the refusal to perform was not evidence of fraud in the original contract. It was error to submit to the jury the question of the existence of a lease, and to give them a measure of damages founded upon a supposed interest of the plaintiff in the land. He who has entered upon lands under a parol contract, void under the statute, may by his operations develop a mine or discover oil, and so add immensely to the value of the property, but the increased value of the land is not the measure of damages for a breach of the parol agreement; the rule is still compensation for the expenditures, less a reasonable allowance [100]*100for the benefits received. Since Jack v. McKee, 9 Pa. 235, and kindred cases were overruled by Hertzog v. Hertzog, 34 Pa. 418, there has been no serious departure from this rule: Dumars v. Miller, 34 Pa. 319; Harris v. Harris, 70 Pa. 170;. Sausser v. Steinmetz, 88 Pa. 324; Rineer v. Collins, 156 Pa. 342. Bowser v. Cessna, 62 Pa. 148, was the case of a public sale and was not by the later cases recognized as a departure from the rule, although Mr. Justice Sharswood, who wrote the opinion in that case, dissented in Harris v. Harris. In Maulé v. Ash-mead, 20 Pa. 482, the measure of damages was not passed upon, but in McClowry v. Croghan, 31 Pa. 22, -the rule as here given was recognized. The only improvements upon the ground at the time the plaintiff was evicted were a brick kiln and the grading of the ground to make the brick yard level. It was contended by the plaintiff that the brick kiln was a trade fixture which he was entitled to remove at any time within his term, and that he was deprived of this right because of the refusal to allow him sufficient time within which to remove the material. The value of this right was equal to the value of the materials when removed, less the cost of removal. If the plaintiff made these improvements upon the faith of a parol agreement that he should have a term of five years, and the expenditure was reasonable in view of the purposes for which the parties intended the premises to be used, they were proper for consideration in determining the amount of damages. If these improvements cost $1,200, and the right to remove the brickkiln was worth $200, the plaintiff must have contemplated a depreciation in the value of the improvements during the- term in the amount of $1,000, to be compensated for which he relied upon the enjoyment of the term. The entire term would have been for five years, but the plaintiff actually enjoyed the fruits of this expenditure for two fifths of the time during which he 'would have been permitted to use the improvements if the parol contract had been fully executed. In determining the part of this expenditure which the plaintiff would be entitled to recover, there ought to have been an allowance for the fruits of the expenditure which he had already enjoyed.
A careful review of the evidence has convinced us that it was insufficient to establish a parol contract to lease the land for five years. The plaintiff averred in his statement a verbal [101]*101arrangement under -which, the rent was to be $50.00 for the first year and thereafter a royalty of twenty-five cents per thousand for marketable bricks manufactured. The only testimony offered in support of this averment, as to the terms of the contract, was that of the plaintiff himself. His testimony was that the rent was to be $50.00 for the first year, as averred in his statement, but as to the'subsequent years there is between his allegation and his testimony a fatal variance. The plaintiff testified at the trial, page 5, appendix of appellant’s paper-book, as follows: “ Q. What was said about the rent for the years after the first year? A. Well, after that I was to pay either the royalty of fifty bricks on each and every thousand salable brick that I made, or twenty-five cents per thousand in money. Q. And it was to be in your option either to pay in money or in brick after the first year ? A. Well, not altogether my own option, as we might agree to settle it between us.” On page Bl, we find this testimony: “ Q. In your direct examination you have testified in response to Mr. Stewart that on the question of royalty it was to be money or bricks as settled between you; as you would settle when, between you ? A. At the time it was due, I suppose. Q. But that it was^spoken of before you entered upon the premises June 4, 1894, that it was to be twenty-five cents per thousand or fifty bricks per thousand? A. Before I entered upon the premises, why sure, yes.” This was substantially all the evidence as to the terms of the alleged agreement to lease for five years. It thus appears that the parties had never come to a final agreement, as to the royalty after the first year, at the time the plaintiff went into possession and made the expenditures for which he now seeks to be reimbursed. The terms upon which the plaintiff was to continue to occupy the premises after the first year were left to future negotiations. The minds of the parties never did come together and agree upon the rate of royalty averred in the statement. An action to recover damages for the breach of a parol contract, which cannot be specifically enforced because of the statute of frauds and perjuries, must be supported by evidence of the contract which is clear, satisfactory and unambiguous, to enable the plaintiff to recover. The evidence in this case did not come up to this standard. It was insufficient to establish a definite parol contract to lease for a term of five years, upon [102]*102precise terms. The plaintiff failed to prove his alleged contract and was not entitled to any damages for a violation thereof: Poorman v. Kilgore, 87 Pa. 309; Hart v. Carroll, 85 Pa. 508.
The plaintiff, upon his own showing, entered as a tenant at will. Unless this tenancy was enlarged into a lease from year to year by the subsequent acts of the parties, it was in' the power of the defendant, upon proper notice, to dispossess the plaintiff at any time. In that case the plaintiff would have been bound to remove his trade fixtures within his term; that is, before the expiration of the period allowed him by law for removal after notice. In this case, however, there was ample evidence, including the written notice by the defendant to quit, to establish a tenancy from year to year. The defendant testified that he never agreed to lease for five years, and that the first term, under the parol agreement, expired April 1, 1895, and that it was renewed for one year, or until April 1, 1896, when the defendant took possession. If this was true, the plaintiff had no right to recover. If the entry was as testified to by the plaintiff, and the tenancy at will had become enlarged into a tenancy from year to year, then the term did not expire until May, 1896. If such was the fact the plaintiff was entitled to damages for the loss of that period of his term between April 1, 1896, and the day in May of that year which corresponded with the day of that month in 1894, when the parol agreement was made. If by reason of being evicted before the end of the year he was deprived of his right to remove the fixtures, then he would be entitled to damages for the deprivation of that right: Duran v. Rothermel, supra.
The appellant at the trial offered considerable testimony in support of various items of counterclaim. The abstract of the proceedings printed in his paper-book does not show that the plea of payment, or any other plea, had been filed. This omission will no doubt be rectified before entering upon another trial.
The judgment is reversed and a venire facias de novo awarded.