#### Hutchinson *v.*Welch.

In an action of ejectment, a rescission of a contract of sale of real estate was held by the court below not sufficiently proved by the parol evidence, and the supreme court affirmed the judgment.

May 10, 1888.

Error, No. 29, July T., 1888, to C. P. Fayette Co., to review a judgment on a conditional verdict for the plaintiff in an action of ejectment, by Elijah Hutchinson against Samuel Welch, with notice to John McKnight and John Stewart, terre tenants,and John W. Moore, at June T., 1885, No. 376. Gordon, C. J., and Trunicey, J., absent.

The plaintiff, by his writ, claimed title .to a lot of some four acres in South Union township, Fayette county. Plea, not guilty.

On the trial, plaintiff offered in evidence a patent from the Commonwealth to Isaac Hutchinson for a tract, including the lot in dispute, and a deed from the executors of Isaac Hutchinson to plaintiff, and'then rested.

*514Defendant offered in evidence articles of agreement, dated May *14,*1881, between Elijah Hutchinson and Samuel Welch, for the sale, by the former to the latter, of the lot in dispute, the consideration being $500, to be paid as follows: $100 on April 1, 1882, and $100 on the first day of April each year thereafter, until the whole sum was paid. Defendant then introduced evidence to show that Welch paid $10 at the execution of the agreement, and took possession, built a shanty on it and moved his family there. After-wards he built a better house for his family on this lot and rented the shanty. Not being able to meet the first payment, Welch, on Oct. 1, 1881, offered to sell the property to John W. Moore, and subsequently, on Oct. 26, 1881, assigned in writing to Moore his interest in the Hutchinson agreement. On the following day, the original agreement was procured from Geo. B. Hutchinson, and an assignment by Welch was indorsed thereon and the consideration money paid by Moore. Welch shortly afterwards moved out of the premises and delivered them to Moore, who has since held possession, and made substantial improvements. As,the subsequent payments became due, Moore tendered them to Hutchinson, who declined to receive them.

The plaintiff, in rebuttal, testified to the effect that on the 24th or 25th of October, 1881, he and Welch called upon George Hutchinson, the attorney who had drawn the original agreement, in order to lift the agreement, but that they were not able to find him, that he saw George in the evening of Oct. 25th, and told him that Welch had given up the agreement but did not get it, that when he again saw George Hutchinson, the agreement had been assigned to Moore.

The further testimony on this point was as follows :

James Hutchinson, recalled: “I remember a conversation between Elijah Hutchinson and Samuel Welch about the possession of a little house on this five or six acres; Welch came up there and I heard him say he couldn’t pay for the land, and he was going to move, away, and he would have to take it back — Elijah told him all right, he would take it back, — and then they started away together for a little piece down towards the bridge; I don’t know where they went after that; I think it was after dinner — in the afternoon; this was at Hutchinson’s mill; McCoy was there. Didn’t know Welch any more than j ust when he came down there I saw him. I knew him when I saw him.”

James McCoy, sworn: “ I remember a conversation between Elijah Hutchinson and a man I supposed to be Mr. Welch — he was a stranger to me at the time; had never seen him before; he came there to the mill and told Mr. Hutchinson that he couldn’t pay for the piece of land or property; he used one of the expressions, property or land, and Mr. Hutchinson told him, ‘it’s all right, I’ll take it back; ’ this at Hutchinson’s mill; don’t know where Welch lived at that time; don’t know where this little plank house was that was spoken of; this conversation was in the fall of 188 x. I think there *515was no one present except Mr. Hutchinson, his brother James and this other gentleman that came there, the four of us. Mr. Welch began the conversation, if I remember rightly; I couldn’t say just what was said first, but it appeared his business was to give a release or give up his property. I think he said something about moving, but I couldn’t be positive.”

Cross-examined: “This conversation was in the fall of 1881. I think so, I couldn’t be positive. I fix the date because I worked for Elijah Hutchinson at that time, in the fall of 1881. This was in October, I think, pretty well on towards the last of the month, if I recollect rightly. I had worked for Hutchinson some before that, and I guess some after that, too. This conversation occurred near the steps of the old mill, between that and the barn. I was right close to them. Welch came up to us and began to talk. We were doing some work at the mill at the time and were going through the mill. He just came to us and commenced to talk. He just told Mr. Hutchinson he couldn’t pay for the property. This was in the latter part of October, 1881.”

Welch was recaíled and testified that he had never agreed to rescind the agreement between him and Hutchinson, and that he had never at any time gone with plaintiff to get George Hutchinson to deliver up the article of agreement.

The court charged, inter alia, as follows, by Ewing J.: “Under the view we take of the law in this case, it is only necessary for you to pass upon the question of how much money is due upon the article of agreement originally made between Welch and Hutchinson for the purchase of this piece of land in dispute, and determine within what time the defendant must pay that money to the plaintiff. The evidence offered in regard to the rescission of that contract we do not think is sufficient to work a rescission, and consequently instruct you that you must pay no attention to that.”

Verdict for plaintiff for the premises described in the writ, tobe released on payment by J. W. Moore to the plaintiff in twenty days the sum of $680.41, and the plaintiff to pay costs; the plaintiff to execute a deed at the time the money is paid. Subsequently, a judgment was entered on this verdict. Plaintiff then took this writ.

*The assignment of error*specified the portion of the charge given above, quoting it.

*Edward Campbell,*with him *R. P. Kennedy,*for plaintiff in error.

Unexecuted articles for the sale of land may be rescinded by parol, so that, in equity, no specific execution of them could be enforced, or a recovery be had in ejectment: Garver *v.*McNulty, 39 Pa. 473; Boyce *v.*McCulloch, 3 W. &S. 432; Dayton *v.*Newman, 19 Pa. 198.

Our Statute of Frauds restrains the enforcement of a parol contract for the purchase and sale of lands; but it does not prevent an action for a breach of the contract, as does the British statute, by *516express language: McKinney *v.*Reader, 7 Watts, 123; Tripp *v.*Bishop, 56 Pa. 424.

Under the first clause of the statute, an absolute parol estate would be effective as a lease for three years at least: Stover *v.*Cadwallader, 2 Penny. 117. A surrender of demised premises must be accepted by the lessor: Auer *v.*Penn, 99 Pa. 370. An acceptance by a landlord of the keys, after a precedent request, is an acceptance of the term: Reaney *v.*Fannessy, 14 W. N. C. 91. A landlord may accept a surrender by parol, and, if he does, the term is gone into the reversion, and the rent ceases: Greider’s Ap., 5 Pa. 422; McKinney *v.*Reader, 7 Watts, 123 ; Frank *v.*Maguire, 42 Pa. 77.

Washabaugh *v.*Stauffer, *81 Pa. 497, decided the very point involved here.

S'. *L. Mestrezat,*with him *C. E. Boyle,*for defendant in error.

By the articles, Welch had an equitable interest in law, and, under the Statute of Frauds, his interest cannot be defeated by parol: Goucherz/. Martin, 99 Watts, 107; Moore *v.*Small, 19 Pa. 469.

The very point at issue is ruled by Cravener *v.*Bowser, 4 Pa. 259-

In Tripp *v.*Bishop, it is held that an action may be maintained for breach of parol contract of sale of land, but this court says that the measure of damages is not the price agreed to be paid, as that “ would give the same effect to parol contracts which is given to contracts in writing, and that would be to disregard the statute.”

Garner *v.*McNulty, holds that, where possession is taken by the vendee under a written agreement of sale, there cannot “ be a parol rescission of the conveyance, so as to reinvest the grantors with title without a violation of the statute of frauds.” The farthest that this and similar cases go is to the extent of holding that, as between vendor and vendee, there may be such a rescission by parol, accompanied by such acts in execution of it as would estop the vendee from claiming specific performance of the contract afterwards: Cravener *v.*Bowser, supra. In Washabaugh *v.*Stauffer, Stauffer sold to Washabaugh, by an agreement in writing, dated Sept. 1, 1868, and possession was to be given Nov. 1, 1868. Washabaugh refused to complete his purchase by taking possession or paying the purchase money as it became due. In November, 1868, he wrote a letter to Stauffer declining to take the land, and acquiesced in the sale of lots and the coal under the premises. In May, 1870, he brought suit to enforce the specific performance of the contract. This court very properly held that Washabaugh’s conduct estopped him from enforcing the contract. The facts of this case show clearly the distinction between it and the case at bar. All the other cases cited by the plaintiff arise under leases which are specially excepted from the operation of the statute, and do not bear on the question under consideration.

*517May 21, 1888.

Per Curiam,

It is not necessary for us to decide in this case whether unexecuted articles for the sale and purchase of land may be rescinded by parol so that in equity no specific execution of them could be enforced. We do not mean by this that such question has never been decided, nor that it is one of any difficulty. We do not decide it for the reason that it is not in the case. The learned judge below instructed the jury that there was not sufficient evidence of a rescission, and in this we think he committed no error.

Judgment affirmed.