There is an insuperable difficulty in the way of affirming this judgment. The action is to enforce the specific performance of a parol contract for the sale of land. There has been no such part performance of the contract' as will, under the decisions of this court, take the case out of the statute. Blanchard v. McDougal, 6 Wis. 167; Smith v. Finch, 8 Wis. 245. In Smith v. Finch, WhitoN, C. J., says: “It is only in cases where the defendant would be enabled to practice a fraud upon the complainant unless the contract is specifically executed that a court of equity will interfere. If the purchaser has gone into possession of the land so as to render him liable as a trespasser if the agreement is held void, the court will enforce performance.” Our statute expressly declares that every contract for the sale of lands shall be void unless the contract, or some note or memorandum thereof expressing the consideration, be in writing, and be subscribed by the party by whom the sale is made, or by his lawfully authorized agent. Sec. 2304, R. S. The difference between the phraseology of our statute and that of the English statute of 29 Gar. IL, and of the statutes of most of our sister states, is pointed out by Dixon, C. J., in Brandeis v. Neustadtl, 13 Wis. 142. Our statute says the contract shall be void if not in writing. It is not merely voidable, as the learned counsel for the plaintiff contends. The distinction between a void and a’ voidable contract is important, and cannot be disregarded. The contract in quéstion -is of the former character.
But the same counsel suggests that it is too late to raise *369the objection that the contract is invalid, because tbe objection was not taken by the pleadings or evidence. But the objection, we think, is available as the record stands. The answer states, in substance, that the plaintiff and defendant entered into a parol agreement, whereby the plaintiff sold to the defendant a lot of lumber which the plaintiff owned and had at Saxeville in the county of Waushara, and at Eremont in the county of Waupaca; that by the terms of this agreement it was provided that the plaintiff should transport and deliver the Saxeville lumber at Tustin free from charges, etc.; that in consideration thereof the defendant was to convey to him the land referred to in the complaint, and, in addition, transfer certain personal property named; that at the time, as a pai’t of the arrangement or agreement, the defendant and wife executed a deed of the land to the plaintiff, and delivered it in escrow to the defendant Hct/rroun. The answer further alleges that the plaintiff failed to perform the conditions of the contract on his part to be performed. All of the evidence in regard to the parol contract seems to have been admitted without objection— the parties differing materially as to its terms. At the close of the trial the defendant’s counsel requested the court to find as a fact that the contract was by parol, and as a conclusion of law that it was void under the statute. This was sufficient to raise the question as to the invalidity of the contract in the court below.
Erom this statement of the case it is very plain that it comes fully and precisely within the decision in Campbell v. Thomas, 42 Wis. 439; for it is impossible to distinguish the cases upon any material point. There, in pursuance of an oral agreement for the sale of land by the defendant to the plaintiff, the latter paid a small part of the purchase money, and the defendant executed a deed of the land running to the plaintiff (in which the consideration was simply stated to be $3,100), and delivered the conveyance to II., with di*370rections to deliver it to tbe plaintiff if the latter should on the second day thereafter deposit with H. his two notes for a certain sum secured by a mortgage, and also pay to H. for the defendant the balance of the consideration. Within the time, the plaintiff offered to II. the notes, mortgage, and money; but H., by the defendant’s direction, refused to deliver to him the deed, and at the same time tendered back to the plaintiff the money already paid. In an action against the vendor and depositary to compel a delivery of the deed to the plaintiff, the court held that the contract of sale, resting as it did in parol, could not be enforced. The case was very fully and ably argued on the first hearing and on the rehearing which was granted, and it was most carefully and thoroughly examined by the court. The instructive opinions filed by Mr. Justice LyoN and the chief justice contain all the law and reasons which need be presented to vindicate the soundness of the decision made. It would be idle to enter upon a further discussion of the question here.
In this case all the terms for the contract of sale rest in parol, the consideration for the conveyance, and the stipulations as to the sale and delivery of the lumber. True, the defendant Swanke gave a written bill of sale of the personal property which the evidence shows he sold with the land, in which he transfers “ all the farming utensils belonging to me on the farm described as follows, to wit: S. S. E. ^ sec. II, town 25, range 8 west, in Eau Claire county,— the said farm being this day conveyed by me to said Ferdinand Popp; also one hundred bushels of oats, and fifty bushels of wheat, and six tons of hay out of the crops now growing and being on said premises as aforesaid mentioned and described.” But this bill of sale does not state that the personal property sold and farm conveyed was in consideration of the lumber purchased. So, when we inquire what the contract for the sale of the land was, we *371find it was not in writing. Therefore it is obvious that there was no valid contract to sell and convey the land, because all rested in parolA Perhaps no case could be presented which would more forcibly illustrate the wisdom of the statute than the one at bar. The contract of sale, as stated in the complaint, differs from the contract set forth in the answer. The parties differ materially as to the terms of the contract in their testimony. The defendant say's .that the plaintiff represented that the saw-bill called for from 140,000 to 145,000 feet, and that he relied upon this statement as to the quantity of lumber purchased. The court found that the quantity of lumber delivered was 84,000 feet, which the plaintiff says was all he undertook to deliver. And there were other differences in the versions which the parties give of the transaction. The parties contradict each other; one or the other perhaps “committing just such perjury as the statute was passed to prevent.” Ryan, C. J., in Campbell v. Thomas.
But it is said the bill of sale to which we have referred, and the conveyance of the land made at the time and deposited w-ith Harroun in escrow, satisfy all the requirements of the statute. „ But the bill of sale states no contract for the sale of land. It describes the farming utensils and crops sold as being and growing upon a tract of land which “ is this day conveyed by me to Ferdinand Popp.” But this shows no valid contract for the sale of the land. We must still resort to parol evidence to ascertain what that contract was. But this we are not permitted to do, because the statute requires such a contract, or some note or memorandum thereof expressing the consideration, to be in writing.
The court found that the plaintiff delivered on the contract 84,000 feet of lumber, of the value of $11 per thousand. No exception is taken to this finding upon either side. The plaintiff admits that he received a buggy on the contract, the value of which is not determined. The counsel for the *372defendant states that be concedes the right of the circuit court, under the circumstances, to retain jurisdiction of the action for the purpose of awarding compensation to the plaintiff for the value of the lumber delivered, after deducting the price of the buggy. Certainly, such a. judgment hvould work no injustice to any one, and the rights of the parties can be fully protected by the court so adjusting the •matter, and save them the expense of bringing a suit-at law to recover the value of the lumber. Of course, the question .of costs can be settled by the court below as justice may require.
■ ' By the Court.— The judgment of the circuit court is reversed, and the cause remanded for further proceedings ■according to law.