(dissenting). The opinion of the court makes the defendant liable in damages to the plaintiff lo the extent that he sustained loss in giving* up his home and contract in Illinois, his time lost, and his expenses incurred in moving to Kentucky, although *418it is conceded by tbe court that the contract set up is within the statute of frauds and not enforceable. Where the defendant has received the consideration, and then relies on the statute, he may be required to return the consideration he has received; but no adjudged case or text-writer, so far as I can find, makes him liable in damages for the loss in plaintiff’s business or his expenditures to others, where he refuses to carry out the contract.
In 29 Am. & Eng. Encyc. 836, the rule is thus well stated: “Although part performance by one of the parties to a contract within the statute of frauds will not, at law, entitle such party to recover upon the contract itself, he may nevertheless recover for money paid by him, or property delivered, or services rendered in accordance with and upon the faith of the contract. The law will raise an implied promise on the part of the other party to pay for what has been done in the way of part performance. But this right of recovery is not absolute. The plaintiff: is entitled to compensation only under such circumstances as would warrant a recovery in case there was no express contract, and hence it must appear that the defendant has actually received or will receive some benefit from the acts of part performance. It is immaterial that the plaintiff may have suffered a loss because he is unable to enforce his contract.” See Hambell v. Hamilton, 3 Dana, 501; Montague v. Garnett, 3 Bush, 297; Mannen v. Bradberry, 81 Ky. 153; 20 Cyc. 298.
In Browne on Statute of Frauds, sec. 118a, the rule is thus stated: “The rule that, where one person pays money or performs services for another upon a contract void' under the statute of frauds, he may re*419cover the money 'upon a count for money paid, or recovered for the services upon a quantum meruit, applies only to cases where the defendant has received and holds 'the money paid or the benefit of the services rendered. It does not apply to cases of money paid by the plaintiff to a third person in execution of a verbal contract between the plaintiff and defendant such as by the statute of frauds must be in writing. ’ ’
That damages can not be awarded for the violation of a contract within the statute of frauds, see Ala. Mineral Land Co. v. Jackson, 121 Ala. 172, 25 South 709, 77 Am. St. Rep. 46, and notes; Dunphy v. Ryan, 116 U. S. 497, 6 Sup. Ct. 486, 29 L. Ed. 703; Franklin v. Matoa Gold Mining Co., 158 Fed. 941, 86 C. C. A. 145, 16 L. R. A. (N. S.) 381, 14 Am. & Eng. Ann. Cas. 302. That the defendant is not liable unless the money paid or the services rendered inured to his benefit, see Kimmins v. Oldham, 27 W. Va. 265 Emery v. Smith, 46 N. H. 157; Marcy v. Marcy, 9 Allen (Mass.) 8; Pierce v. Paine, 28 Vt. 34, and cases cited.
The plaintiff’s petition fails to show that the defendant actually received any benefit from what the plaintiff did. The plaintiff has only suffered a loss because he is unable to enforce his contract. The circumstances are not such as would warrant a recov-' cry in the absence of an express contract. There are no facts on which an implied assumpsit by the defendant to pay anything can be predicated. The plaintiff has sustained a loss; the defendant has received nothing. To make him compensate plaintiff for his loss is simply to make him pay damages for breaking his contract. The defendant had under the statute a legal right to refuse to carry out the contract, and while he must in such a case return what he has received under it, he can not, for exercising a legal *420right, be made to suffer a loss, or 'be compelled to compensate the plaintiff for the loss he thereby sustained. To make the defendant answerable in damages for the plaintiff’s loss of liis home and business in Illinois, or his expenditures in time and money on the faith of the verbal contract, is to hold him liable for not carrying out that contract, although the statute for the prevention of frauds and perjuries (gives him the right to do so.
For these reasons, I dissent from the opinion of the court.
Barker and Lassing, JJ., concur in this dissent.