pended money, these acts are in equity generally considered as such part performance as will take the lease out of the statute of frauds, and entitle the tenant to specific performance of the contract. Thus specific performance of an agreement to give a lease will be decreed where the lessee has entered, paid rent, and cut his carpets to fit the rooms: Wendell v. Sterne, 39 Hun, 382. Or specific performance will be decreed after acts of part performance, such as fencing the land, building houses, and paying taxes: Morrison v. Peay, 21 Ark. 110. And where the tenant, by virtue of an oral lease, takes possession of the leased property, and continues therein for five years, plants, cultivates, and raises hedges thereon, breaks up and cultivates the ground, builds houses, and digs wells on the land, and pays the taxes, the lease is taken out of the statute of frauds, and may be enforced for the full term: Bard v. Elston, 31 Kan. 274. Or where the landlord enters into a parol agreement to execute to another a written lease of land for more than a year, and such other person, in pursuance of such agreement, enters into possession, and expends time, labor, money, and materials in making improvements upon the land, and in putting it in condition to use and enjoy during the term of the contemplated lease, there is such part performance as takes the case out of the statute; and if the landlord afterwards refuses to execute the lease, and ousts the lessee from the premises, the latter may in equity recover damages: Deisher v. Stein, 34 Kan. 39. When the tenant has taken possession of land under an oral lease for more than a year, and paid an installment of rent, this is such part performance as will take the case out of the statute, and support a decree for specific performance, either on the part of the lessor or lessee, as the case may be: Grant v. Ramsey, 7 Ohio St. 158; Eaton v. Whitaker, 18 Conn. 222; 44 Am. Dec. 586; Steininger v. Williams, 63 Ga. 475; Shakespeare v. Alba, 76 Ala. 351. Or if the tenant has taken possession and made improvements, this is such part performance as will take the contract for the lease out of the statute, and justify a decree of specific performance against the landlord: Wharton v. Stoutenburgh, 35 N. J. Eq. 266; Benjamin v. Wilson, 34 Minn. 517. Although the tenant is entitled to specific performance, still, such entry and improvements under the contract is no defense at law to an action of unlawful detainer commenced after a year from making the contract: Brockway v. Thomas, 36 Ark. 518. The specific performance of an expired parol lease may be granted, when the parties have rights under a later written lease requiring its determination: Switzer v. Gardner, 41 Mich. 164. Where the bill prays specific performance of a parol contract for a leasehold interest in lands, and the defendant avers that the terms of the contract were other than as alleged, and a contract is proved, materially different from that alleged in the bill or answer, the court may, with the consent of the plaintiff, decree specific performance of the contract as proved, or rescind it and put the parties in statu quo: West Virginia Oil Co. v. Vinal, 14 W. Va. 637. It follows, as a necessary result of the decisions herein before cited, that whether a lease is oral or written is not very material, if the lessee has entered into possession and paid rent under it, and can establish its terms to the satisfaction of the court to which he resorts for the purpose of compelling specific performance. In other words, a lease may be regarded as a sale of a limited interest in real estate, and though, like a sale of the fee, it ought to be evidenced by some writing in substantial conformity to that exacted by the statute of frauds, it may, like a sale of the fee, be followed by acts constituting such a part performance as to remove it from the operation of that statute, and entitle the lessee to compel the lessor to execute the appropriate evidence of the demise. The cases falling under our observation may be divided into three classes: 1. Those in which there was an oral agreement for the execution of a written lease: Deisher v. Stein, 34 Kan. 39; Clark v. Clark, 49 Cal. 586; McCarger v. Rood, 47 Cal. 138; Seaman v. Aschermann, 51 Miss. 678; 37 Am. Rep. 849; 2. Those in which the lessee has, pursuant to the terms of a parol lease, constructed on the leased premises improvements of substantial value: Bard v. Elston, 31 Kan. 274; Morrison v. Leary, 21 Ark. 110; Wilber v. Paine, 1 Ohio, 251; Steel v. Payne, 42 Ga. 207; and 3. Cases in which the lessee has paid the rent, or some part thereof, pur. suant to the terms of an oral lease: Grant v. Ramsay, 7 Ohio St. 158; Eaton v. Whitaker, 18 Conn. 222; 44 Am. Dec. 656; Steininger v. Williams, 63 Ga. 475; Shakespeare v. Alba, 76 Ala. 351. Where possession has been taken and is held pursuant to the terms of the lease, specific performance has been decreed in each of these classes of cases; and while the right to this relief appears to be less questionable in the cases of the first and second class, we have met no case which necessarily limits relief to those classes. If a person already in possession of premises as a tenant verbally contracts with the land. lord for a new term, his mere continuance in possession thereafter is not such an act of part performance as will justify a decree for specific performance: Spaulding v. Couzelman, 30 Mo. 177; Maharra v. Blunt, 20 Iowa, 142; Armstrong v. Kattenhorn, 11 Ohio, 265; Railsback v. Walke, 81 Ind. 409; Crawford v. Wick, 18 Ohio St. 190; Jones v. Peterman, 3 Serg. & R. 543; 8 Am. Dec. 672. Mere introductory or ancillary acts or improvements made by the landlord in anticipation of a lease, though attended with expense, cannot, as acts in part performance, take a lease resting in parol out of the operation of the statute: Bacon v. Parker, 157 Mass. 309. Still, as we have seen, the tenant inay recover compensation for improvements or repairs made upon the faith of the parol lease after he has gone into possession and partly performed his part of the contract: Petty v. Kennon, 49 Ga. 468; Brockway v. Thomas, 36 Ark. 518; Findley v. Wilson, 3 Litt. 390; 14 Am. Dec. 72; Parker v. Tainter, 123 Mass. 185; White v. Wieland, 109 Mass. 291. It seems that, in some instances, the proper remedy of the tenant in such case is in equity: Welsh v. Welsh, 5 Ohio, 425. When the landlord has resumed possession after part performance by the tenant in possession under the parol lease, he is not entitled to specific performance of the remaining term under the contract: Hooper v. Dwinell, 48 Ga. 442 CONTRACTS-PAROL EVIDENCE TO VARY. - A new and distinct agreement made subsequently to a contract under seal, whereby, upon a new consideration, the original contract was changed, and an agreement entered into to perform additional work, or the same work in a different manner, may be proved by parol, without violating the rule that extrinsic evidence is not admissible to contradict or alter a written instrument The deviation, except where otherwise expressed or mutually understood, must be taken in its proper connection with the original contract, with reference to and in modification of which it is made, and the special contract will be pursued as far as it can be traced in the intention of the parties. CONTRACTS-SUBCONTRACT GOVERNED BY TERMS OF ORIGINAL CONTRACT. -Where a written contract calling for a certain class of work provides that all work is to be done as directed by the engineer in charge, and is to be paid for as estimated by him, and such contract is subsequently changed by a subcontract resting in parol, calling for a better class of work, the estimate of the engineer, made fairly and without fraud, as to the value of the work performed under the subcontract, is final and conclusive on the parties, and not open to the opinion of those who casually observed the work. ASSUMPSIT to recover a balance alleged to be due for work done under contract. The defendants, a partnership doing business under the name of Keller and Bush, took a contract for the construction of the Clearfield and Jefferson railroad, from one Green, who was the general contractor of the railroad company. They gave Peter McCauley, the plaintiff, a subcontract to do the masonry work on the part of the road between the towns of Irvona and Mahaffey. This work was done by him, under his subcontract, during the year 1886. 758 Keller and Bush entered into another contract with McCauley, on March 25, 1887, by which he was to do the masonry work on that part of the railroad between Mahaffey and Williams's Run. This contract was under seal, and was as follows: "Articles of agreement made and concluded this twenty-fifth day of March, 1887, between John Keller and L. L. Bush, of Lancaster City, state of Pennsylvania, of the first part, and Peter McCauley, of Philipsburg, Centre County, state of Pennsylvania, of the second part. - Agreed, That the said party of the second part will do all the masonry necessary for the completion of the Clearfield and Jefferson railway between Mahaffey and Williams's Run, in a good and workman-like manner, the same as masonry on same line between Irvona and Mahaffey. Said party of the second part to furnish all labor and material needed to do said masonry; also to do the masonry first where it will be necessary to start grading, or as may be desired by the superintendent of the said Keller and Bush. All work to be done as directed by the chief engineer of said railway. For which the said parties of the first part promise to pay to the said party of the second part the sum of $5.50 for all secondclass masonry, and $2.50 for box-culvert masonry, the same prices to be paid for cubic yards. All work to be paid for as estimated by the engineer in charge during the month, and payments to be made on or about the 20th of the succeeding month, less ten per cent, which shall be kept back until the completion of the work. "PETER MCCAULEY. [Seal.] [Seal.] [Seal.] "Witness: J. A. CARTER." The engineer in charge, spoken of in the contract, was em ployed by the railroad to supervise the work of construction of the road, and had personal charge of it. McCauley commenced the performance of this contract by putting in such masonry as he had constructed during 1886. The engineer in charge refused to accept this grade of work, and required masonry of a superior quality to be put in. Keller then agreed to pay McCauley an extra compensation for all work done as required of the engineer of a better class than that called for in the contract. Under this agreement, McCauley went on and completed the masonry work, in first-class condition and with first-class materials. Defendants then refused to pay the amount claimed to be due for the extra work, under the parol agreement, but offered to pay, and made a tender of, the amout due under the sealed contract. Verdict for plaintiff for $11,839.45, in addition to the tendr. Judgment on the verdict, and defendants appealed. Other facts are stated in the opinion. George A. Jenks, G. D. Jenks, W. P. Jenks, and E. H. Clark, for the appellants. B. J. Reid, R. C. Winslow, J. E. Calderwood, and Charles Cor bet, for the appellee. CLARK, J. It is very plain that the parties to this contract had in contemplation that no part of the masonry between Mahaffey and Williams's Run would be first-class. It was to be the same as the masonry between Irvona and Mahaffey, which had been constructed in the previous year, and was considered second-class. The contract, in specifying the prices to be paid, made no provision for any first-class work. It is equally clear that the work was to be done "as directed by the chief engineer" of the company, and that "the work was to be paid as estimated by the engineer in charge during the month, payments to be made, according to that estimate, about the 20th of the succeeding month, less ten per cent," etc. Under the written contract, therefore, the engineer was the arbiter of the kind of work to be done, as well as of the class to which it belonged; and his decision determined the compensation which the plaintiff was entitled to receive under his contract. It turned out, however, that at certain points on the line masonry of a higher class and grade was required by the engineer than was contemplated by the parties, and the contract fixed no price for this higher grade of work. It is alleged, on the part of the plaintiff, that when this exigency arose, the defendants instructed the plaintiff that the work should be done "as directed by the engineer," and that they would pay the plaintiff what it was reasonably worth; that the work required for arch masonry was of a superior quality and workmanship, and that the whole work, as completed under the requirements of the engineer, was of a better quality than that between Irvona and Mahaffey, which was mentioned in the contract as descriptive, in a general way, of the kind of work to be done; and this suit is brought, not only to recover for "extra" work, that is to say, for what the work done was worth more than was stipulated in the contract, but |