It is quite impossible for us to hold, that what has been actually signed by this defendant is such a memorandum of a contract for a lease, as will answer the demands of the statute of frauds. Even if we were to go as far, with regard to the rent to be reserved, as, in the case cited to us, the court of appeals of Virginia went, with regard to the price of the tract of land which was sold, as the memorandum showed, "according to contract," — and allow that to be proved by parol, still, the term for which the lease was to be granted would remain to be ascertained; and that, it is well settled, cannot be, by anything short of written proof. Clinan v. Cook, 1 Sch. Lef. 22;Abeel v. Radcliffe, 13 Johns. 300.
As to the memorandum of the contract given by Dwight on the 6th of March to the plaintiffs, there is no express proof tending to show that he was authorized to give it, as the agent of the defendant, or that the defendant has since ratified his authority to give it; and it would not do to imply an authority from a grantee to a grantor to encumber the estate conveyed, by any act to be done by the latter, after he had parted with his entire interest in it to the former. The attempt to connect this memorandum of Dwight's with the contract and the bond reciting *Page 159 it, signed by the defendant in the January previous, equally fails; for the contract could not, by any possibility, have referred, at the time it was signed, to the memorandum, when the latter had no existence, and does not appear to have been thought of until months after.
We cannot, however, conceal from ourselves that the defendant, by refusing, under cover of the statute of frauds, to perform this contract, is attempting to practice a fraud, both upon Dwight's estate and upon the plaintiffs; and that, too; so far as we can see, looking through some circuity of action, without any ultimate benefit to himself.
It is beyond question, notwithstanding the defendants' attempt to show that the plaintiffs did not consider themselves bound by it at one time, that the plaintiffs and Dwight did enter into the contract for a lease set up in the bill; and that upon the faith of this and other contracts to hire his estate when rebuilt, Dwight did proceed to rebuild the Museum, and has, by his memorandum of the 6th of March, given to the plaintiffs such proof of his contract with them as to subject his estate to damages for the breach of this contract, if it be not performed by the defendant. It is also beyond question, that the defendant, with full notice of the particulars of this contract between Dwight and the plaintiffs, communicated to him at the time by the broker who negotiated the sale, assumed it upon himself by his written contract with Dwight, engaged and gave bond to hold him harmless against it, and finally accepted his deed of the Museum estate from Dwight, expressly stipulating therein that he would hold that estate subject to it. The assumption by the defendant of this contract for a lease, entered into and formed a part of the consideration which Dwight was to receive for the estate, as much as the assumption by the defendant of the two mortgages upon it. It does not appear that prior to the 6th of March, when Dwight gave to the plaintiffs the memorandum of his agreement with them, that any notice had been given by the defendant to him, or to the plaintiffs, that he did not in good faith intend to perform the contract to which it related, and which he had so repeatedly assumed upon himself; and, certainly, it cannot be doubted but that if the plaintiffs recover damages from *Page 160 Dwight's estate for the breach of his contract, provable now against it by a memorandum sufficient within the statute of frauds, that the estate will be protected, to the extent of those damages, by the bond of indemnity given to Dwight by the defendant. The action will not be then upon the parol contract, but upon the bond; it will not be for damages for the breach of the parol contract, but for breach of the condition of the bond, whereby a loss has accrued to the estate of the obligee. No law, no equity, can protect the defendant against it; and refusing this remedy against him, will merely, after this circuity of action, visit upon him in substance the same liability, loaded with additional expenses and costs. This is the practical view of the question before us; and is there anything in the theory of the law which will compel us, under the circumstances, to turn the plaintiffs over to this circuitous course of obtaining justice against the defendant?
It certainly seems to us that there is such privity of contract in this matter between Dwight, the plaintiffs, and the defendant, as to deprive the defendant of the right to say that the plaintiffs are strangers, or third persons, as they are sometimes called, to the contract between Dwight and himself. He bought the estate of Dwight, subject to a trust concerning a portion of it, raised upon a consideration passing as between him and Dwight, the breach of which trust will subject Dwight's estate to a liability to the plaintiffs, against which he must indemnify it. The contract of Dwight to sell to him the estate, embraced, as part of it, the contract on his part to execute this lease to the plaintiffs. This contract has been, by his deed, wholly performed by Dwight; and the defendant accepted that deed subject to the performance of this contract, which constituted a portion of the very consideration which the defendant was to give; and Dwight to receive, for his estate. Under such circumstances, what element is wanting to make Dwight's conveyance enure as a part performance of this contract, in such sense, as equitably to estop the defendant from refusing to perform it by setting up the statute of frauds, the result of which refusal will be, to subject Dwight's estate to the plaintiffs, and the defendant to Dwight's estate, for the precise equivalent of the breach of trust, which, *Page 161 by such refusal, the defendant would commit, to the injury both of the plaintiffs and of Dwight's estate. Upon the ground of equitable estoppel, to prevent fraud and a breach of trust, and save a circuity of action which must end at last in defeat of the scheme of the defendant, we feel authorized to do equity by enforcing, in the outset, against him, the specific performance of this contract. If this contract be not a part of, or so interwoven with the contract of purchase between the defendant and Dwight, as to make the conveyance of the latter to the former a part performance of it, and thus lift it out of the statute of frauds, the jurisdiction of this court, to prevent breach of trust and fraud, which lies at the bottom of the whole doctrine of part performance, still justifies us in holding, that the defendant is, under such circumstances, equitably estopped from setting up the statute; especially when, by so holding, we can stop litigation, by arresting the first step of the defendant in the circuity of action through which he is advancing, to the cost and injury of himself, as well as of the plaintiffs.
We prefer to rest our judgment upon this broader ground, which seems to us plain and intelligible enough, rather than upon the ground of a taking of possession of the premises by the plaintiffs, in part performance of and under their contract, with the assent of the defendant, and the expenditures in fixtures made by them upon the faith of their contract. Although there is some conflict of testimony, we think that the weight clearly inclines to the conclusion, that the plaintiffs took possession, with the assent of the defendant, and had expended nearly three hundred dollars, with his knowledge, in their shop fixtures, in the full faith that he would give them the lease that they had contracted for, and without the notice that they were to have but a lease for a year, which the defendant swears that he gave them Had this possession been taken, and these expenditures been made, with the assent of the defendant, during, and as a part of the term, and had the possession been exclusive in its character, it would undoubtedly have been sufficient under the authorities, to lift the contract out of the statute of frauds. Our doubt upon this part of the case arises from the fact, that the possession seems to have been taken by the plaintiffs as preliminary *Page 162 to their possession under their contract, before the building was completed, by the joint license of the contractor, in whose hands it yet was, and of the defendant, to store their heavy goods which were arriving, and to put up their shop fixtures; that it was not exclusive, inasmuch as it is proven by one of the plaintiffs that the defendant kept the keys of the shop and locked it up every night, and, of course, let them in every morning; that on the first day of June, when, it seems from the days afterwards observed as the quarter rent days, the term, in the understanding of the parties, commenced, the defendant formally tendered to the plaintiffs the keys of the store upon a lease for one year only, which he informed them was all that they were legally entitled to, which they declined, and went off, he locking up the store after them, as one of the plaintiffs informs us, as usual; that they did not enter the store again until some two days after this, when they did it without the consent or even privity of the defendant, and against his will, as they well knew; since the evidence clearly shows, that for several of the first days of their subsequent occupation they held, and intended to hold, the defendant out by force. There is some conflict of testimony, too, as to the character and value of the shop fixtures; whether they were not such as to be quite as necessary for the occupation of the premises for a year, which the defendant was willing to accord to the plaintiffs, as for the term which they claim; and whether, indeed, such fixtures, removable by the tenant at the end of his term, and not proved, as these were not, to add at all to the permanent value of the estate, are such expenditures, incapable of compensation, in the legal sense, as take the case of a parol contract for a lease, in a court of equity, out of the statute of frauds.
We suggest these difficulties, without intending to pass upon them, as our reason for preferring the higher and clearer ground above stated, upon which we place our judgment. Let a decree be entered that the defendant specifically perform the contract for a lease in the pleadings mentioned, the case to be referred to a master to settle the terms and form of the lease in conformity thereto; that the defendant be perpetually enjoined from further *Page 163 prosecuting the action for rent pending in this court, mentioned in the bill and answer, and pay all costs of this suit, including the costs of the proceedings before the master.