¶1Plaintiff instituted this suit to recover damages for the violation of an executory paxml agreement that defendant would execute a lease to him of certain laxxds for one year, with the privilege of thx’ee, at the ■annual rental of flOO per year. The court instructed the jury that, if they found such to be the contract, the plaintiff was entitled to recover as damages the difference between the market value of the lease and What he •agreed to pay for it.
¶2It is conceded that, if this was a contract for a lease for •a longer period than a year, it is void under the statute of frauds. 2 How. Stat. § 6181. It is settled that such a contract, unexecuted, cannot form the basis of an action or of a defense. Salb v. Campbell, 65 Wis. 405; Carney v. Mosher, 97 Mich. 554; Grimes v. Van Vechten, 20 Mich. 410; Hall v. Soule, 11 Mich. 494. The contention of the plaintiff is that the contract may be performed within one .year, and is therefore good for that period, in support of which he cites Barton v. Gray, 57 Mich. 634; Whiting v. Ohlert, 52 Mich. 462; Blake v. Voight, 134 N. Y. 69.
¶3In Whiting v. OKlert the sole question decided was that •a parol agreement for a year’s lease, to begin in the future, is valid. Barton v. Graygoes no further than to hold that the statute of frauds does, not apply to- contracts which leave it uncertain whether they may or may not be performed within a year, or which depend upon a contingency that may happen within the year. Blake v. Voightholds that a verbal contract which contains an option allowing either party to terminate it within a year is not within the statute, although without the ■option it would be within the statute.
¶4*57Neither of these cases is like the present, or affords any light in construing this contract. Counsel for the defendant do not argue the question, but assume that the lease was to be for three years. We have been unable, after •considerable search, to find any ease involving such a contract, or one which affords uis any light. We think, however, upon principle, that it is within the mischief which the statute is designed to prevent. The ciomimct ■contemplated a lease for three years, and, so far as the defendant is concerned, it is absolute. Plaintiff has not exercised his option, and asked for a contract for a year. He comes into court relying upon a parol contract by which he was entitled to a lease for three years. His case appears to have been tried upon that theory, for his damages were not limited to one year. The defendant could not have complied with the contract by tendering a lease for a year, nor could the plaintiff compel the execution of a lease for a year, because such contracts contemplate the exercise of the option after the execution of the lease. lit follows 'that the agreement is void under the 'Statute, and cannot, therefore, be miade the basis for a recovery for a breach of contract.
¶5Judgment reversed, and new trial ordered.