delivered the opinion of the court. November 10th, 1884.
*459This was an action of assumpsit brought by the plaintiff, James G. Allison, against Thomas Montgomery, for the recovery of the price of a mowing machine, some fifteen bushels of wheat, and also for damages alleged to have resulted to the plaintiff, from the breach, by the defendant, of a parol gift of a lot of land. On the trial of the case, after hearing the evidence produced on part of the plaintiff, the court below held, that it was not sufficient to sustain the action, and directed a verdict for the defendant. In this, notwithstanding the able argument of the counsel for the plaintiff in error, we have not been convinced that a mistake was made by the learned judge who presided at the trial in the Common Pleas. It seems from the testimony, that the plaintiff, a son-in-law of the defendant, went upon the farm, and into the house of his father-in-law, as a cropper. After he had been there for a month or two, the fact appears to have been mutually recognized that the farm house was not large enough for the two families. To meet this difficulty, Montgomery proposed to erect a small house for the use of Allison; he, however, not being satisfied with the size or character of the building which his father-in-law proposed to erect, it was orally agreed between them that the plaintiff should himself put up such a house and out-buildings as might accord with his own views, on a twelve acre lot which Montgomery had recently bought and attached to his farm. The proposed erections were accordingly made by Allison at a, cost of some seven or eight hundred dollars.
It also appears, on part of the plaintiff, that as an inducement to make the improvements, as above stated, the defendant bad previously promised to execute a deed for this twelve acre lot to the plaintiff and his wife, though at what particular time this was to be done does not very definitely appear. As soon as the bouse was finished the plaintiff moved into it, and continued its occupancy uninterruptedly until he concluded to change his residence to the city of Allegheny. He then left the premises in charge of the defendant with authority to rent them, which, as he himself says, was done under his direction. Taking Allison’s testimony for verity, and his possession of the property was never interfered with or disputed by the defendant, whilst, so far as tbe deed for it was concerned, it seems never to have entered into the plaintiff’s bead to make a demand for it. The only thing that even looks like a denial of his right of possession is found in bis own evidence, where be says, that in a talk which he had with his father-in-law in the city of Allegheny, he refused to allow him to go to the lot at all, but in this he immediately contradicts himself by saying: “He would not allow me to go at all near his prem*460ises. We bad no talk concerning just tbe twelve acres, or my going on it at all. I gave him authority to rent the housej he asked me what the house would rent for, and he rented it tinder my instructions.” Now, we agree that, notwithstanding ' the statute of frauds and perjuries, an action will lie in favor of a grantee for a breach of a parol contract for the sale of land, thopgh since the overruling of the case of Jack v. McKee, 9 Barr 235, and its consequents, by Dumars v. Miller, 10 Ca. 319, the damages which may be recovered in such action are to be confined to the purchase money that may have been paid, or the expenses actually incurred in consequence of the contract. The vendor must restore the vendee to the condition in which he found him, but he is not bound to compensate him for the loss of a bargain. But in order to recover at all it must be shown affirmatively that the defendant has refused to comply with his part of the agreement. It is not enough that the contract is within the statute, and that by reason thereof either party may rescind at pleasure ; there must be an actual rescission, an actual breach, or no action will lie. A parol contract for the sale of land is neither illegal nor per se void, but voidable only, hence, if the vendor does nothing by way of repudiation he cannot be visited with damages. But in the case in hand, we have as yet not discovered .that Montgomery has been convicted of a violation of his agreement with his son-in-law. He has neither evicted him from the premises on which the house was built, nor refused to execute a deed; in other words, there is no evidence of the rescission of the contract on part of the defendant. It is true, if we take the evidence of Montgomery, who was put on the stand by the plaintiff for the purpose of cross-examination, though he never actually refused to execute a deed, yet neither did he intend so tu do even if it were demanded, but for this intention he gives as a reason,.that he never entered into the alleged contract. If, therefore, we are to give force to his testimony, there is now, and never was any foundation for the plaintiff’s claim. Under the circumstances as above detailed, we cannot but approve the action of the court in taking this part of the case from the jury. The balance of the case has less, if possible, to support it than that founded upon the alleged parol gift. When the plaintiff abandoned the defendant’s premises, the mowing machine was left in charg;e of the latter, and under this arrangement it still remains in his possession. He never professed to have any claim to it except as Allison’s bailee, neither has Allison ever made a demand for it. The same can be said of the wheat; it remains just where he left it; the defendant so far from denying his right to, or property in it, *461not only filled bis orders when he chose to send them, but took the pains to have the wheat ground for his use, and if he did not get every grain of it, it was simply because he did not see proper to ask for it.
The judgment is affirmed.
TetiNKett and Stereett, JJ., dissented.