The opinion of the Court, after a continuance for advisement, was drawn up by
Shepley J.It is important to understand, what the testimony excluded would have proved, if it had been admitted.
Upon examination, it is found to prove one entire contract for the exchange or conveyance of certain real estate described. There was no agreement for the payment of money; no act was to be done beyond that of a conveyance of real estate from party to party. The case presented, is that of an agreement for the conveyance of real estate, not reduced to writing, but performed in part by each party, and a further performance refused by one of the parties ; and the other party seeking in this action at law to recover damages for such refusal.
The case does not therefore present the question decided in Steele v. Adams, nor invite a reexamination of it. The contract proved, can be no other than a contract for the sale of real estate ; and the act to prevent frauds and perjuries provides, that “ no action shall hereafter be maintained upon any contract for the sale of lands,” “ unless the agreement upon which such action shall be brought or some memorandum or note thereof shall be in writing, and signed by the party charged therewith, or some other person thereunto by him lawfully authorized.”
It is contended, that as there was a part performance, the contract is taken out of the statute. It was said by Mr. Justice Puller, “ that as it is settled in equity, that a part performance takes it out of the statute,' the same rule shall hold at law.” Brodie v. St. Paul, 1 Ves. 326. Lord Eldon comments upon this remark of *17Justice BuIIer, and shews, that according to their principles and modes of proceeding, the rule cannot be the same at law and in equity. Cooth v. Jackson, 6 Ves. 12. And such has been the decision at law. Rondeau v. Wyatt, 2 11. Black. 63. Kent C. J., says, “ there is such a dictum of Justice Buller while sitting in the Court of Chancery, but it has newer been received as law.” Jackson v. Pierce, 2 Johns. 222.
The contract between the parties cannot be enforced at law; and although this Court has jurisdiction in equity, this is not a process in equity ; and it would be improper to act upon it as such; because if the plaintiff has an equitable right it is a different one from that of having damages assessed by a jury for a breach of contract, and the defendant may also, in a proceeding in equity, set up a defence, which he could not at law.
Nonsuit confirmed.