OPINION,
Me. Justice Geeen :This was not a proceeding for the specific performance of a contract for the sale or lease of land, nor was it an action founded upon an alleged change by parol of the terms of a written agreement; but it was an action to recover the actual damages sustained by the plaintiff, in his part performance of a parol agreement which, as he alleges, the defendant made with him to grant him a lease of land for coal mining purposes, and afterwards refused to perform. The plaintiff claims that he went to work on the land, and made excavations until he found coal, and commenced taking it out, when the defendant notified *147bim to quit work and refused to give him any lease of the land. He claims to recover from the defendant his actual loss in conducting the work, including the cost of excavation and mining. It will be perceived at once that no question arises involving the "application of the statute of frauds, nor any question concerning the alteration of a written contract by parol. If the contract alleged by the plaintiff was not made by the parties, he has no case; if it was made as he alleges, he has a case, and it is not affected by the statute of frauds, or the rule of law which prohibits the change of written contracts by parol.
There was a written contract between the parties made in July, 1887. By it the defendant “ consented” that the plaintiff should “ have the privilege of mining and selling coal from the pit situate on north side of Frankstown road, in Penn township, Allegheny county, Pa., and known as Etter’s Pit, (formerly worked by John Etter, and owned by the said Jacob Weinman,) for the period commencing on this date, (July 27, 1887,) and expiring August 1, 1890.” In the whole of the lease there are no other words than these, which describe the land upon which the plaintiff was to mine and sell coal. No quantity, and no boundaries of the land are described. It was, however, from Etter’s pit and on the north side of Frankstown road that the plaintiff’s operations were to be conducted. Thére was a further provision of the lease “ that no coal shall ■be taken out or mined within the north or south lines of Franks-town road, nor within such distance of either line of Franks-town road as may be hereafter designated by the said Jacob Weinman.” Now, the plaintiff alleges that in June, 1888, after he had been working under the contract for nearly a year, he was in need of more coal than he could get from the Etter pit, and he applied to the defendant for a lease of eight or ten acres of other land of the defendant, on the south side of the Frankstown road, and that the defendant promised it to him; that the defendant went with the plaintiff upon this piece of land, and set the plaintiff to work, at first one place, and then another, at both of which he fpund no coal after he had sunk excavations for that purpose, and then, at a third place, where coal was found; that he (the plaintiff) drove an entry in about 180 yards, framed about thirty yards of it, put down a track, furnished the iron and other materials, built a *148platform, and was taking out coal under this verbal contract, until in July, 1889, when the defendant ordered him to quit mining, and leave the premises, and refused to give him any lease of this land.
The plaintiff testified to all of these matters when examined as a witness, and said that the defendant agreed that when coal was found, he would send a surveyor to survey off eight or ten acres of the land at the place where the coal was found, and would make a lease of that land to the plaintiff, to last as long as coal was found. The defendant denied that he had made any such agreement, but alleged that all of this work, which he admitted was done, was performed by the plaintiff under the original written lease, and alleged further that the plaintiff had conducted his mining operations on the north side of Frankstown road negligently and injuriously to the defendant as owner, and that that was the reason why he ordered the plaintiff to quit work. The plaintiff was supported in his testimony by one witness named Jack, who testified substantially as the plaintiff did, in regard to the actions of the defendant and his promise to make a lease for the eight or ten acres if coal was found. The learned court below, in an exceedingly lucid and impartial charge, submitted all the evidence to the jury, who found a verdict in favor of the plaintiff, and thereby-determined the disputed questions of fact as to the making of the subsequent parol contract, its performance by the plaintiff, and its breach by the defendant, in favor of the plaintiff.
It is perfectly obvious that no other course could have been pursued by the court. The question involved was one purely of fact; the kind of contract set up by the plaintiff was perfectly legitimate; it was not affected by the statute of frauds so far as a recovery in this action was concerned, and it did not involve any change of a written contract by parol. If the plaintiff incurred expense in his performance of the contract, and the defendant prevented him from proceeding further, without right, he was undoubtedly entitled to recover the éx penses to which he. had been subjected. We find no error in the treatment of the case by the court. The first assignment of error is not pressed, and is without merit. It was no de-fence to this action that the plaintiff had negligently worked another mine leased from the defendant. The answer to the *149defendant’s first point was entirely correct. His second, third, and fourth points required tbe case to be taken from the jury, which certainly could not be done. We think the case was well and carefully tried by the court below, and that the defendant was accorded every opportunity for a favorable decision by the jury to which he was entitled.
Judgment affirmed.