The plaintiff’s contract to give the defendant a lease for five years was xithin the statute of frauds, and could not be enforced. But if he broke it before the defendant had broken the contract on his part, and expelled him from the premises, the defendant would thereby be entitled to recover of him for the repairs which he had made on the premises in conformity with his contract. Williams v. Bemis, 108 Mass. 91, and cases there cited.
It appearing that the plaintiff had refused to give the lease, he offered to prove in excuse that the defendant had failed to pay the rent, but did not offer to prove that any rent had become due 'when he refused to give the lease. This limited offer of proof was insufficient to meet the defendant’s claim for repairs; and the evidence was rightly rejected.
Exceptions overruled.