The opinion of the court was delivered by
Collamer, J.Under the statement of facts reported, is the plaintiff entitled to sustain this action ? At common law, every reservation of rent was considered as of the realty, and to be recovered by distress or debt, and this, whether by deed or by parol. This did not arise from any writing, required by the statute of frauds and perjuries, for it was so before this act was passed. Dartnal v. Morgan, Cro. Jac. 598. Yet, when there was an actual use by permission, and an express promise to pay, in consideration of the permission to occupy, this was not considered as a lease and reservation of rent, and assumpsit might be sustained. This created much difficulty as to the form of the action ; to relieve which the statute of 11 Geo. 2. Ch. 19, was passed, which gives assumpsit in all cases, except where the demise is by deed. Here, there was an express promise to pay, and actual occupancy, by permission, and, therefore, this action of assumpsit can be sustained at common law, Whether that express promise is by word or by writing, is immáterial, if it is not by deed. It is not now necessary to inquire what could be done with a case of use, with no express promise to pay.
The contract between these parties amounts to this. In consideration that the plaintiff will permit the defendant to take possession of the plaintiffs factory, tools, machinery and privileges, and use and occupy them one year, the defendant will pay the plaintiff 300 dollars. The plaintiff does permit the defendant so to do, without any molestation by the plaintiff, or surrender by the defendant. This is the contract, and this is in substance the declaration. How much is the plaintiff entitled to recover ?
It is undoubted law, that, where the defendant expressly agrees to pay rent, he must pay, though the buildings be consumed, as he has not guarded himself against such a contingency, by any exception. It is now insisted that this is peculiar to specialty or covenant. This is not so. The case of Baker v. Holtpzaffell, 4 Taunt. 45, was not a deed, yet the tenant was compelled to pay the whole rent. It is further insisted, that the contract was for the sale of an interest in land, and void by the statute, and that, as no action can be sustained thereon, it should be wholly laid out of the case, and the plaintiff recover *190only so much as the defendant actually had the use of. Our statute does not declare a parol contract, in relation to an interest in land, void. It only provides that no action shall be sustained thereon. Therefore a count, declaring on such a letting, as an executory contract, could only be sustained by a written contract. But this statute, like the other clauses. in the same section of the English statute of frauds, is entirely inapplicable to contracts executed. That statute provides that no action shall be sustained on a parol contract not to be performed within a year. Yet, if such a contract be made, and the service be performed, and action be therefor brought, the price fixed by this parol contract is the measure of damages. If a parol contract be made to give $5,000 fora certain farm, and the conveyance be actually made and accepted, and possession taken, most undoubtedly an action may be sustained for the $5,000, notwithstanding it was agreed by parol, and though no action could have been sustained on it, as an executory contract. So, in this case, the contract was executed. The plaintiff sold the defendant the occupancy of certain premises, and delivered them. The defendant agreed to pay therefor a certain sum, and he made no exceptions. He has had that occupany, without molestation from the plaintiff, and without surrender by himself. It is' executed on the part. of the plaintiff, $nd is binding on the defendant.
Judgment Affirmed.