tempt being to sustain an action on it as such. But in this case, the contract, so far as the service has been performed, is executed, and is relied on as regulating and determining the right of the plaintiff to compensation for what has been done under it. We are here concerned only with what has been done. The question is, what the plaintiff is entitled to for his labor; and this depends upon the terms of the contract under which he performed the service. Had the whole service been performed, the rate of compensation would, without doubt, be regulated by the terms of the contract. No court would discard that contract, and resort to a quantum meruit. The principle is the same as to a performance in part. The defendant may be without remedy for the desertion of the plaintiff, but he may certainly protect himself as to what has been done.

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ABBOTT v. DRAPER.

4 DEN. (N. Y.) 51.-1847.

ERROR to Columbia C. P. The parties joined issue before a justice of the peace, Abbott being plaintiff, and Draper defendant. The declaration was for goods sold and delivered, and the money counts: plea, the general issue. The cause was tried in December, 1843. The case was this: In October, 1842, the defendant agreed to sell the plaintiff a strip of land about six feet wide and running back to the water, for the sum of $60; one-half of which the plaintiff was to pay in money and the other half in goods out of his store. The goods were to be delivered immediately, as they might be called for by the defendant. The money payment was to be made in July, 1843, upon receiving which the defendant was to give a deed. The contract was reduced to writing; but was never signed by the parties. The plaintiff took possession and occupied the land; and delivered goods to the defendant in pursuance of the contract to the value of $23.57. Upon this state of facts the plaintiff brought this action in December, 1843, to recover the value of the goods. The jury found a verdict for the defendant, on which the justice rendered judgment, which the C. P. affirmed on certiorari. The plaintiff brings error.

BRONSON, Ch. J.-As the writing which was prepared was not signed, there was nothing more than a parol contract for the sale of the land, which was void by the statute of frauds. But still the parties have acted under the contract as though it were valid; and the plaintiff has received a benefit from it. He entered into the possession and enjoyment of the land; and there is nothing to show that he is not still in possession. It would be strange indeed if he could recover in this action on the ground that the contract was void; while he continues to receive advantage from it as a valid agreement.

He cannot thus treat the contract as both good and bad at the same moment. Honesty and fair dealing forbid it.

Although the statute declares a parol contract for the sale of lands void, it does not make it illegal. It is not a corrupt or wicked agreement; nor does it violate any principle of public policy. Parties. are at liberty to act under such contracts if they think proper. Many such have been carried into complete effect, by payment of the price, and conveyance of the land. Part performance does not take the case out of the statute, so that the contract can be enforced in a court of law. But when the vendee has received the possession and paid a part of the price, the contract is not so utterly void that he can recover back the money just as though there had never had been an agreement. If he can recover at all so long as the vendor is not in the wrong, he must, at the least, first restore the possession, and demand the repayment of the money. It is impossible to maintain that he can retain the possession, and yet recall the money. And though he has never had the possession, or any other benefit under the contract, yet as he did not part with his money as a loan, but as a payment, he cannot recover it back without first demanding it from the vendor, and giving him notice that the contract is abandoned. When a man has paid money as due upon contract to another and there is no mistake, and no fraud or other wrong on the part of the receiver, there is no principle upon which it can be recovered back, until after a demand has been made. It cannot be right to subject a man to an action for money which was received as his just due, before he has had notice that he who paid it has changed his mind, and intends to repudiate the obligation under which the payment was made.

But the difficulty lies still deeper than this. So long as the vendor is not in default, but is ready to perform the contract on his part, I see no principle on which the vendee can recall the payments which he has made under the agreement. It was adjudged that he could not, in Dowdle v. Camp, 12 John. 451; and although there are some loose expressions in the books looking the other way, none of the cases maintain a different doctrine. When the vendor refuses to go on with the contract, or has parted with his title so that he cannot perform, he is then in the wrong; and having himself put an end to the contract, there is no longer any consideration for the payments which have been made under it; and the law will imply a promise to restore the money. But how can the law imply a promise to refund the money so long as the vendor is not in default? The payment was a voluntary one, made with a full knowledge of all the facts. Every time a payment was made and received, the parties virtually said, although the law will not enforce this contract, we will go on and carry it into effect. The money is not received as a loan, but as a payment; and so long as the vendor is able and willing to perform the contract on his part, he holds the money as owner, and not as a debtor. The consideration upon which the

money was paid has not failed, and there is nothing from which a promise to repay can be justly implied.1

In this case, the plaintiff was let into possession of the land, and, for aught that appears, he has the possession still. He is in default for not making the money payment which was due in July, 1843; while there has been no wrong whatever on the part of the defendant. So as far as appears, he is able and willing to convey on receiving the balance of the price. The defendant did not receive the goods in question as a debtor, but as a payment, and the consideration upon which they were delivered has not failed. Before the plaintiff can recover their value he must put the defendant in the wrong by tendering the balance of the purchase money and demanding a deed.

Should it be admitted that the vendee can repudiate the contract without any default on the other side, still he must give notice to the vendor that the contract is abandoned, and demand a return of the money paid, before he can sue to recover it. Any other rule would be plainly unjust toward the vendor. And yet that is the very thing which has been done by this plaintiff. After having made payments under the contract from time to time, he stopped short and brought this suit, without ever having told the defendant that he had changed his mind, or demanded payment for the goods which had been delivered. This is not fair dealing, and the law will not sanction it. Judgment affirme-1.2

KING v. WELCOME.

5 GRAY 41.-1857.

THOMAS, J.-This was an action of contract on a quantum meruit, for labor done by the plaintiff for the defendant. The amount and value of the plaintiff's services were not disputed, but the defendant relied upon an express contract by which the plaintiff was to work for an entire year, and a breach of such contract by wrongfully leaving the plaintiff's service before the year expired. That contract was not in writing. By its terms, the plaintiff was to labor for one year from a day future. The plaintiff said that contract was within the statute of frauds, and could not be set up in defense to the action. So the court ruled.

1

1 Accord, Collier v. Coates, 17 Barb. 471 (1854); Hoskins v. Mitcheson, 14 Upper Can Q. B. 551 (1857).

Section 1183 of the Cal. Code of Civ. Pro. provides that certain building contracts shall be "wholly void," etc., unless in writing and filed for record. As to the effect of failure to comply with this requirement upon the right to recover in quasi-contract for benefits conferred, see Laidlaw v. Marye, 133 Cal. 170 (1901).

Rightly, we think; though, in the light of the authorities, the question is a nice and difficult one.

Upon the reason of the thing, and looking at the object and purpose of the statute, the result is clear. So far as it concerns the prevention of fraud and perjury, the same objection lies to the parol contract, whether used for the support of, or in defense to an action. The gist of the matter is, that, in a court of law, and upon important interests, the party shall not avail himself of a contract resting in words only, as to which the memories of men are so imperfect, and the temptations to fraud and perjury so great.

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The language of our statute is, that "no action shall be brought upon any agreement that is not to be performed within one year from the making thereof, unless the promise, contract, or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized." Rev. Sts., c. 74, § 1, Cl. 5.

Looking at the mere letter of the statute, the suggestion is obvious, that no action is brought upon this contract. But the defendant seeks to "charge the plaintiff therewith," to establish it by proof, to enforce it in a court of law, and to avail himself of its provisions. And if the defense succeeds, the plaintiff is in effect charged with and made to suffer for the breach of a contract which he could not enforce, and which could not be enforced against him. The difference, it is clear, is not one of principle. To illustrate this, let us suppose that in the contract, which the defendant seeks to set up in defense, there had been a provision for the payment of the wages stipulated, by semi-annual instalments. If, upon the expiration of the six months, the plaintiff had brought an action upon the contract to recover the instalment, the action could not be maintained; the statute of frauds would be a perfect defense. This is settled in the recent case of Hill v. Hooper, I Gray 131. But if in an action brought for money lent or goods furnished to himself or family, he may avail himself of the instalment, by way of set-off or payment; the difference is merely one of form, and not of substance.

Still further, upon the construction of the statute contended for by the defendant, the laborer in the contract stated would be without remedy. For if he brought his action upon the contract for the instalment, the statute of frauds would be a bar; if upon a quantum meruit, the express contract to labor for a year would be a bar.

The sounder construction of the statute, we think, is that a contract within its provisions is one which neither party can enforce in a court of law. Carrington v. Roots, 2 M. & W. 248; Reade v. Lamb, 6 Exch. 130; Comes v. Lamson, 16 Conn. 246. The cases in the exchequer go farther than is necessary to sustain the rule stated. They hold the contract, as a contract, is void, because it is a contract of which a party cannot avail himself in a court of law. Upon this point the recent case of Leroux v. Brown, 12 C. B. 801, is in conflict with them.

This court has not treated the contracts as absolutely void. When fully executed, they define and measure the rights of the parties thereto. And if this contract had been fully executed, and the plaintiff had earned the price stipulated, and had then brought quantum meruit on the ground that his services were reasonably worth more, the contract so executed would have been a full answer. Stone v. Dennison, 13 Pick. 1. But this contract was not performed; it was, to a great extent, executory. For breach of it by the defendant, no action could be maintained by the plaintiff. Nor, by parity of reason, can the plaintiff's breach of it be set up to defeat his reasonable claim for services rendered.

But though a contract within the statute of frauds, as a contract, cannot be enforced in a court of law, it may be available for some purposes.

A parol contract for the sale of land, though not enforceable as a contract, may operate as a license to enter upon the land, and, until revoked, be a good answer to an action of trespass by the owner.

So where money has been paid upon a parol contract for the sale of land, it cannot be recovered back, if the vendor is willing to fulfil the contract on his part. This is settled in the recent case of Coughlin v. Knowles, 7 Met. 57, a case which certainly resembles the one at bar, but which may be clearly distinguished from it. That action rests upon an implied assumpsit. The implied promise arises only upon the failure of the consideration upon which the money was paid. The plaintiff fails to show any failure of consideration. He shows the money was paid upon a contract not void, and which the defendant is ready to perform. The consideration upon which it was paid exists unimpaired. If the defendant had refused to convey, or if, as in the case of Thompson v. Gould, 20 Pick. 134, the property had been destroyed by fire, so that the contract could not be performed by the vendor, there would be a failure of consideration, from which an implied promise would arise, and the action could be maintained.

In the case at bar, the plaintiff shows services rendered for the defendant, and their reasonable value. The defendant, admitting the performance of the labor and its value, says the plaintiff ought not to recover, because he made an entire contract for a year, which he has not fulfilled. The plaintiff replies, that contract was for work for a year from a day future; it was within the statute of frauds; it was not in writing; it was not executed, and cannot be used in a court of law, either as the basis of an action, or to defeat a claim otherwise just and reasonable.

In the case of the money paid upon a contract for the sale of land, the action fails because no failure is shown of the consideration from which the implied promise springs.

In the case at bar, the defense fails because the contract upon which the defendant relies is not evidenced as the statute requires for its verification and enforcement. For it is the whole contract of which the defendant seeks to avail himself. His defense is not