delivered the opinion of the court, January 2d 1882.
This was an action on the the case brought by the Griswolds, the plaintiffs below, against the administrator of William MeOafferty’s estate, to recover damages for the breach of a parol agreement, or rather promise, by William MeCafferty, in his lifetime, to execute to the plaintiffs a twenty years lease for five acres of land in the county of Butler. Ón the 31st of August 1872 MeCafferty made a written lease to the plaintiffs for five acres of land for the term of twenty years, in consideration of which the plaintiffs agreed to enter upon the land immediately and bore for oil, and, if they were successful, render to MeCafferty one-sixlh of the oil which might be produced. They were also to pay him one hundred dollars an acre for the land, if for ten successive days the well yielded twenty-five barrels of oil a day, and two hundred dollars an acre if the yield was forty barrels or over.
The plaintiffs entered upon the property and diligently prosecuted their work at a cost of ten thousand dollai’S, and at a depth of fourteen hundred feet they found oil in quantity sufficient to produce one hundred and seventy barrels a day. After-wards they sold this lease for the sum of eighteen thousand dollars. Now, according to the testimony of the plaintiffs, MeCafferty had, previously to the time of the execution of the lease above mentioned, promised orally that it should cover ten acres. It was further proved, that these plaintiffs refused to execute this paper or to proceed with the work except on the premise then made by MeCafferty that he would afterwards lease to them the additional five acres.
This, then, is a brief outline of the facts as found by the jury, and which, though denied by the defendants, we must take as true. For a breach of this promise to lease this action is brought. The court instructed the jury, that if they found the facts as above stated, the plaintiffs were entitled to recover, and that they might adopt, as a proper measure of damages, half of the cost of the well put down on the five-acre lease. The defendant complains of this instruction as improper and illegal, and we think his complaint must be sustained.
The case is one covered by the statute of frauds and perjuries. The promise was for a lease of more than three years, and hence, under the statute, it cannot be sustained. Neverthe*276less, an action for the breach of this parol agreement was well brought; but, what should be the measure of damage? Not the difference between the price to be paid and the actual value of the lease, in other words, the value of the bargain. For since the case of Hertzog v. Hertzog, 10 Casey 418, which overruled Jack v. McKee, 9 Barr 235, and the cases which followed it, no such rule can be applied. On the other hand, we have in Thompson v. Sheplar, 22 P. F. Smith 160, and Sausser v. Steinmetz, 8 W. N. C. 100, this rule stated as the proper measure of damages for the breach of parol leases and sales of lands; that is to say, the money paid and the expenses incurred on the faith of the contract; but, if no money has been paid or expenses incurred, the damages are nominal.
In the case in hand there was no money paid, neither was there any expense incurred, on account of the land proposed to be leased. But, it is urged that without this promise the plaintiffs would not have put down the well upon the five-acre lease. Let this be admitted; what then ? They would have lost, according to their own showing, a bargain of eight thousand dollars. What kind of damages are these: they put down a well at a cost of ten thousand dollars for which they got eighteen thousand ? What nonsense to talk about damages for the breach of an oral contract, which led to such a result as this! But let us suppose the well to have been put down on the faith of a parol lease, and the result had as above stated; on a breach of the contract by entry of the landlord and ouster of the tenants, what would be the damages recoverable by the lessees ? Nothing save the expenses they had incurred in the prosecution of the work; but, as these are paid and overpaid from the land itself, they can get nothing more, for they have suffered no loss. There seems, indeed, to be- a constant disposition on the part of courts to revert to the exploded doctrine of Jack v. McKee; to impinge upon the statute in giving to the plaintiff some compensation for the loss of a good bargain. But this must not be allowed. Injury enough has resulted from that doctrine to demonstrate the wisdom of a strict adherence to the statute, and, it is to be hoped, that the ruling of Jack v. McKee will never again find a place in the jurisprudence of Pennsylvania. Manifestly, here is an attempt to get back upon the forbidden ground; an attempt to compensate the plaintiffs, at least in part, for the loss of a good bargain; otherwise, how could the court have permitted the plaintiffs to recover when they had suffered no loss ?
But we cannot thus permit the force and vitality of a valuable statute to be frittered aAvay, and that upon equities and hardships which are purely factitious. The plaintiffs have suffered neither loss nor wrong. They not only made money by *277their contract, bnt, as to the parol agreement, they knew it was binding on neither party. Had their operation on the lease proved a failure, McCafEerty certainly could not have compelled them to sink a well on the other lot, neither could he have recovered damages for their refusal so to do.
There being thus a total want of mutuality in the alleged contract, and the plaintiffs having suffered no pecuniary loss, they had no standing, either in law or equity, to recover any but nominal damages.
The judgment is reversed, and a venire facias de novo is ordered.