Appeal from the Second District Court, Weber County, Hon.' H. H. Rolapp, Judge.

Action by the plaintiff to recover damages on account of an alleged breach of a written contract. From a judgment for defendant, plaintiff appealed.

An agreement in its first inception may lack mutuality, and may have no consideration expressed, yet certain acts may afterward be done by the party not bound in the first instance, which will give the agreement mutuality and a consideration. Jones v. Snow, 2 Pac. R., 29; Harvesting King Go. v. Mitchell, et al., 89 Fed. Rep., 173; Bloom v. Hazard, 37 Pac. (Cal.), 1037; Reednj v. Smith, 42 Cal., 250; Boyd v. Brincklin, 55 Cal., 427; BrooJcs v. Leathers, 70 N. W., 1099; Me Gartney, et al. v. Glassford, 20 Pac. 423; Clam v. Grayson, 46 Pac., 428-429; Detroit H. i& L. Go. v. Stevens, 16 Utah, 181.

The agreement in controversy was signed by both parties, so that it is taken out of the statute of frauds, and even if the same had not been signed but had been executed, the court would not permit the defendant to take advantage of the statute of frauds. Lynch v. Govialio, 1.7 Utah, 112.

‘ ‘ A contract must be mutual as to the remedy, and a contract will not be enforced against a party who does not possess the power under the contract to enforce it upon his part.” Ryan v. Dumpy, 1 Pac., 710; Richardson v. Hardwick, 106 U S., 252; Wilkmson v. Heavenrich, 58 Mich., 574.

‘ ‘ Whatever the rule may be when the contract is fully performed, it is well settled that the part performance will not give a right to insist on the completion of the residue or recover damages from the opposite party for his refusal to allow the accomplishment of the whole.” Peter v. Compton, 1 Smith L. Cas., 631, (8th ed.); Utah L. dé T. Co. v. Garbutt, 23 Pac., 758; Utah L. & T. Co. v. Garbutt, 6 Utah, 342.

The doctrine that part performance of a contract will make valid a contract invalid by the statute of frauds is exclusively the creature of equity, and applies only to contracts relating to land. Mo Elroy v. Ludkim, 32 N. J., Eq., 828; Wheeler v. Frankenthal, 76 Ill., 124; Osborn v. Kimball, 41 Kan., 187; Comes v. Lawson, 16 Conn., 246; King v. Welcome, 5 Gray, 45; Utah L. dé T. Co. v. Garbutt, 6 Utah, 342.

‘ ‘A party performing services under a contract invalid by the statute of frauds can not sue upon the contract to recover compensation for his services. The only remedy in such cases is upon a quantum meriutP Melilroy v. Lxidlum, 32 N. J., Eq., 828; Browne on Statute of Frauds, Sec. 124; Towsley v. Moore, 30 O. S., 184; Keene on Quasi Contracts, Sec. 127.

STATEMENT.

This action was brought hy plaintiff Ahba against defendant Smyth to recover damages alleged to have been sustained on account of the alleged breach of a written contract, of which the following is a copy:

“ Ogden, Utah, April 7, 1898.

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