delivered the opinion of the court, January 27th 1879.
It would appear from the evidence in this case that some time in the fall of 1871 B. F. Sausser, representing himself and his copartners, made a parol agreement with Daniel Steinmetz, the plaintiff *326below, to lease for the term of five years, from the 1st of January then next following, certain premises on north Fifth street, in the city of Philadelphia, Steinmetz agreed to make certain alterations in the premises, required and deemed necessary by Sausser, in order properly to fit them for the business the defendants proposed to carry on therein. According to the finding of the jury, the plaintiff performed his part of the agreement, but the defendants were in default, in that they refused to execute the lease. For the breach of this • oral contract this suit was brought, and, in discussing the measure of damages to which the plaintiff was entitled, the learned court below charged,, “ Now in this case a gentleman had leased his property for $2000, and by the violation of the contract he did not receive a dollar, and you might consider that the $2000 represents the amount of injury that he sustained, if, as he tells you, he advertised and was only able to rent his place at the end of the year, and you may take that as a measure of damages if you will.”
The serious fault in this instruction is that it is based on a false premise; the plaintiff had not leased his property. The proposed lease was within the Statute of Frauds; hence, the parol agreement to léase could give it no force, and to predicate anything whatever of that intended lease was error. Either party had the right to refuse its execution, and the defendants were guilty of no fraud in availing themselves of such right. Neither party could plead ignorance of the statute, and hence both are presumed to have known that either might take advantage of its terms, and that the defendants did avail themselves of that privilege cannot be regarded as a fraud on the plaintiff: Harris v. Harris, 20 P. F. Smith 170. What these parties had was but an agreement to lease, and, although for the breach of such an agreement, according to Weaver v. Wood, 9 Barr 220, an action will lie, yet, necessarily, the damages recoverable are such only as result directly from such breach. What, then, is the true measure of damages in this case ? Not the amount of the proposed rent, for that, by the statute, the plaintiff is not entitled to, neither can it be used for such measure, for the lease itself, being for a greater term than three years, is void, and so cannot be used for any purpose whatever. He could not recover for the loss of his bargain, for, on authority, this is not allowable: Dumars v. Miller, 10 Casey 319. It does not appear that in consequence of the agreement with the defendants Steinmetz was prevented from leasing to some other party, for at that time he had no other offer, and so it would seem that unless be was induced by his contract with the defendants to so alter the premises as to unfit them for ordinary purposes, or to put work upon them which was unnecessary for their improvement or repair, he has suffered no injury from the breach complained of, and his damages are but nominal.
If the rule submitted by the court to the jury is to obtain, then may a contract, void by the statute, be specifically enforced. Says *327the learned judge, you may measure the damages by the amount of the proposed rent; the premises, notwithstanding the efforts of the landlord to get a tenant, have remained unoccupied for one year, so you may assess damages at one year’s rent, but, of course, the same rule must apply had the premises, under like conditions, remained unoccupied for the whole term of five years. But this was all there was of the parol contract; when the rent is paid, the contract is fulfilled on part of the lessees, and therefore there is a specific execution of it. By the same rule you might enforce a parol contract for the sale of land, and so annul the Statute of Frauds and Perjuries all together; a result not allowable either in reason or on authority: McClowry v. Croghan’s Adm’r, 7 Casey 22; Wilson v. Clarke, 1 W. & S. 554.
It follows, that as tho case stood in the court below, the defendant’s first point should have been affirmed, since the plaintiff, having proved no actual damage resulting from the breach of the contract to lease, was entitled only to a judgment for nominal damages.
The disposition of the eighth specification renders comment on the remaining exceptions unnecessary.
Judgment reversed, and a new venire ordered.