The parties hereto entered into a verbal contract, by which the defendant in error *603agreed to lease a certain storeroom from plaintiffs in error. On the day the agreement was made, the lessee paid $35, being one-half of the monthly rental. The lessee claims that he was prevented from taking possession of the leased premises because of the failure of the lessors to evict certain tenants occupying the building at the time the term of the lease was to commence, and sought to recover the $35 paid.
Attorneys — F. A. Stetson and Anthony Nieding for Atkin et; Samuel Deutsch for Leitner; all of Elyria.At the trial, the court took the position that the lessee was entitled to a judgment for said amount, upon the theory that the contract was within the statute of frauds and void, and that the lessee was entitled to his money whether he had breached the contract or not.
The lessors claimed that the reason possession was not given was because of default of the lessee in refusing to take the leased property at the time and upon the terms agreed upon, and that they were ready, able and willing to cax*ry out the contract as made and could have and would have given possession of the property as agreed upon.
This presented the question of fact to be determined by the jury, unless the trial court was right in saying that it was solely a matter of law. We do not agree with this conclusion of the trial court, although the original contract was unenforceable under the statute of frauds. The lessee had a right to recover the $35 unless it was through his default that the contract was breached, and the lessors were entitled to retain the $35 unless it was through their default that the contract was breached.
“The fact that a verbal agreement to sell land is void under the statute of frauds does not make it illegal; and where the vendor has the deed ready, and is able to and repeatedly offers to convey, but is prevented from so doing by the refusal of the vendee to accept a deed, and six months later the vendor conveys the land to another, a suit cannot thereafter be maintained by the vendee to recover the earnest money on the ground that it was paid without consideration.” Gallagher v. Dettelbach, 1 C. C. (N.S.) 598.
Judgment reversed.
(Washburn, PJ., Funk, J. and Pardee, J., concur.)