The contract is in. substance, an agreement by which the defendant was to pay the plaintiff $150 for the choice of two half sections of land, which belonged to them jointly, and the right to cultivate for one year a portion of cleared land, it being as it appears, uncertain at the time, whether all the cleared land was on the half section selected by the defendant.
It is very clear, that so long as this contract remained ex-ecutory, not being in writing it could not be enforced at law by either party, at least so far as it relates to the choice of the half sections. But it is equally certain, that after it was executed by a conveyance of the land to the defendant, pursuant to the contract, an action will lie, for the consideration agreed to be paid. It is indeed the common case of assump-sit for the purchase money, after a sale and conveyance of an estate in land. [See the precedents. 2 Chit. Pl. 38.]
As this conveyance had not been made when this action was brought, it was prematurely commenced, and the court *889correctly rendered judgment for the defendant on the facts agreed. The plaintiff cannot maintain this action, by proof of facts subsequent to its commencement, by which alone he has the right to sue at law.
The refusal of the plaintiff to permit the defendant to enjoy a portion of the cleared land, which by the contract he was to have the use of for one year, will not defeat his right to an action on the contract, but would go in mitigation of the damages.
A contract made on Sunday cannot be enforced, nor will a subsequent ratification validate it, as it was originally void. [Sheppey v. Eastwood, 9 Ala. 198.] But when, as in this case, nothing is done towards the performance or execution of the contract until a subsequent period, the fact that a similar contr act had been previously made on Sunday, will not bring the subsequent contract within the statute. This is n$t the ratification of a contract previously made, but is a new and substantive contract. In the case cited, if the promissory note there sought to be enforced, had not been made on Sunday, but subsequently, the fact that the parties had made a similar contract previously on Sunday, which was not valid, could not render nugatory the subsequent binding contract.
Let the judgment be affirmed.