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P was a tenant and in possession under a written lease of a farm owned by D. The lease was to expire on March 1, 1929. An oral agreement was made by P to lease the premises upon the same terms for another year to expire in March 1, 1930. After the lease was made but before its term was to begin, D sold the farm to Berry under terms to give Berry possession of the farm once the first written lease with P expired. D unequivocally demanded that P surrender possession on March 1, 1929. When the demand was not met, D sued for unlawful detainer on March 3, 1929. P did not interpose a defense to that action and voluntarily surrendered possession but elected to consider the action as one of constructive eviction. After the making of the oral lease, but before D’s repudiation of it P did a substantial quantity of work which he claimed to have been sufficient part performance as to remove the agreement from the operation of the statute of frauds. D got a directed verdict, and P appealed the denial of his motion for a new trial.

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