The opinion of the court was delivered by
Bennett, J.The personal property, for which the plaintiff seeks to recover in this action, went into the possession of the defendant under the contract, and also the real estate, upon which the defendant made improvements, though it has never been conveyed to him. The defendant fulfilled the contract about thirteen years, as the auditors find, in good faith and family harmony. The father now seeks to recover, in the action on book, for the use and occupation of the land, for the personal property which passed to the son under the contract, and for the labor of himself and family, upon the ground that the son has violated the contract on his part. In regard to the wisdom of contracts like the present, it is not the business of the court to pronounce; but we must be satisfied in disposing of' them as the law points out, whenever it is the misfortune to have questions arise upon them. Though several questions were discussed in the argument, there is no occasion to pass upon but one. The contract between these parties is executory. The real and per*446sonal estate, and the accruing services of the plaintiff and his family, were the consideration of the undertaking on the part of the son, and though it has been in part executed, yet, if there has been a breach of it, the remedy of the party injured sounds entirely in damages. The father could not rescind the contract, and recover in the general action of indebitatus assumpsit. It is a familiar principle that where there is a special contract remaining unexecuted, no general action will lie for the breach of it, and much less will the book action. The party injured is only entitled to his damages, and this, too, in a special action on the contract.
■¡ It is said, in argument, that this contract was void under the statute of frauds, and that hence the plaintiff stands upon the same ground as though no contract had been made. It is not, however, true that this contract, though required to be in writing under the statute of frauds, would be void. The statute does not declare such contracts void, but simply provides that no action shall be sustained on certain contracts : unless evidenced by writing. The statute does not interfere with the substance of the contract, but throws a difficulty in the way of the evidence. Chitty on Contracts, 4. Hamer v. Raymond, 5 Taunt. 788. Though in cases where there is an entire agreement for the sale of real and personal estate the whole contract might be rendered inoperative as to both, by means of the statute, yet, in equity, though it may be otherwise at law, the contract will, in many instances, when partly executed, be upheld. Here the possession of the real estate has been delivered and taken under the parol agreement ; improvements have been made upon it by the son in faith of the agreement, and a part of the consideration paid by the means of his fulfilment of his contract for thirteen years. Chancery, in such case, will enforce the agreement, and it is not competent for the plaintiff to avoid the contract on the ground of the statute, and thereby sustain his action against the adverse party upon the ground that the contract could not be enforced against him, if he chose to avail himself of the statute to avoid it.
The judgment of the county court is affirmed.