no profit or advantage to the plaintiff except from the operations of both years taken together. A large part of the labor and expense incurred in the first year, had no reference whatever to the operations and results of that year, taken by itself, but were a preparation of the land for increased productiveness in the second year. The plaintiff must be considered as having, in that way, paid in advance, in part at least, for the privilege of using the land the second year in the manner agreed upon. By the repudiation of the contract, he has lost the privilege which he had so paid for. The consideration upon which he made that payment has failed by the wilful act of the other party to the contract, and he is therefore entitled to recover back what he has so paid. Basford v. Pearson, 9 Allen 387. If it had been a payment in money, it would be too plain to be controverted. A payment in labor and services, of which the other has secured the benefit, stands upon the same ground.

Judgment for the plaintiff for the sum agreed.

BANKER v. HENDERSON.

58 N. J. L. 26.-1895.

REED, J.-This action was brought to recover the value of the labor and materials expended by the plaintiff in making a wood chopper. It appeared in evidence that the plaintiff verbally agreed to furnish to the defendant a boiler, engine, saw, and wood chopper, for the sum of $450. The engine and boiler were then in existence, but the saw and the chopper were to be made. They were all to be used together, and the price was entire. The defendant refused to receive them, and on account of his refusal they were never delivered. On the trial, upon an objection interposed by the counsel for the defendant that this parol agreement was within the statute of frauds, the trial court ruled that this was so in respect to the boiler and engine, which were in existence when the agreement was made. The court also ruled that the contract was entire, and not severable, and therefore the whole was within the statute. Nevertheless the court permitted the plaintiff to prove the value of his labor expended by him in building the chopper, and also the value of the material used for that purpose. The jury was charged that it could return a verdict for this amount, which amount the jury assessed at $278.71. To this charge the defendant took an exception. The result of this is that the title, not only to the engine and the boiler, but to the wood chopper, upon which this labor and material were expended, remains in the plaintiff, while the defendant, who receives no benefit whatever from it, pays for all this which went to the enhancement of the plaintiff's property, or rather to the creation of property for the plaintiff.

The theory upon which the right to recover for labor or materials furnished under a void contract rests is that one person has received such a benefit as would raise an implied assumpsit on his part to pay for it, and that his failure to perform his side of the contract gives a right of action against him upon this implied assumpsit. In McElroy v. Ludlum, 32 N. J. Eq. 828, services as superintendent had been actually rendered in the business of the firm under an agreement invalid because of the statute. In Mayor v. Pyne, 3 Bing. 285, under a void agreement to deliver twenty-four numbers of a periodical work, eight numbers had been delivered. Upon refusal of defendant to take the rest, there was a recovery for the eight actually received. In Shute v. Dorr, 5 Wend. 204, a parent bargained to receive $100 for the services of his child from the ages of sixteen to twenty-one years. He was permitted to recover on quantum meruit for the services actually rendered, the contract being void under the statute. Indeed, in every case in which a recovery has been permitted on the common counts under these conditions, there has been money advanced under the contract, or labor or materials furnished for the benefit of defendant or his property. Lockwood v. Barnes, 3 Hill 128; Gray v. Hill, Ryan & M. 420; Williams v. Bemis, 108 Mass. 91. Thus, if one puts improvement upon land which he occupies as vendee, under a verbal agreement for a deed or devise, on failure of the other party to carry out the unenforceable agreement he cannot recover the value of such improvements. The reason is that the improvements were not made at the special instance or request of the vendor, nor for his benefit. Where, however, the improvements were put on at the special instance of the defendant, and for the benefit of his estate, an action lies. Smith v. Smith, 28 N. J. Law 208. The rule is illustrated in the case of Dowling v. McKenney, 124 Mass. 478. There was a parol agreement that plaintiff would finish a monument to order, and was to take in pay a lot of land and some cash. He completed the monument, which defendant refused to accept. In an action brought for the value of the labor and materials supplied in completing the monument the right to sue was disallowed. The court said: "It is true that, when a person pays money, or renders services, or makes a conveyance under an agreement within the prohibition of the statute of frauds, and the other party refuses to perform it, an action will lie to recover the money so paid, or the value of the services rendered, or the property conveyed; but it is on the ground that a party who has received a benefit under an agreement which he has repudiated shall be held to pay upon an implied assumpsit for that which he has received. The defendant received no benefit from the labor performed in completing the monument, although the plaintiff may have suffered a loss." Had this wood chopper been delivered, or had work been done upon defendant's ground by which some benefit accrued to defendant's property, the case would present a different aspect, for then the value of such work or materials to the defendant would be recoverable. But in this case, as in the

preceding, the title to the completed articles remaining in the plaintiff, no benefit whatever accrued to the defendant. The judgment. is reversed, and a venire de novo awarded.

JOSEPH S. SMITH v. THE ADMINISTRATORS OF JOHN S. SMITH.

4 DUTCH. (N. J.) 208.—1860.

THE declaration, besides several special counts, contained the ordinary common counts.

CHIEF JUSTICE.-The contract proved upon the trial of this case, or which the evidence tended to prove, was clearly within the statute of frauds and perjuries. It was a contract for the transfer of an interest in land. The plaintiff, who was tenant from year to year of his father (the defendant's intestate), erected new buildings upon the demised premises upon the authority of his father, who told the plaintiff "to go on and build, and the farm should be his," or, as another witness testified, "to go on and fix what he had a mind to-he had left it to him." The evidence in the cause would have warranted the jury in finding that the plaintiff erected the buildings with the consent and approbation of his father, upon his express promise that the farm should be his upon his father's death, by deed or devise. The contract to transfer the land, being within the statute of frauds, was void, and cannot form the foundation of an action. The plaintiff, therefore, clearly could not sue upon the special contract.

May the jury lawfully infer a promise to pay for the improvements in money out of the personal estate of the deceased? It is clear, from the evidence, that the erection of the buildings was not a voluntary service, nor a service rendered relying upon the generosity of the intestate to make compensation. The son expressly refused to proceed with the buildings till he had his father's promise that the farm should be his. The case, therefore, does not fall within the familiar principle, that no promise can be implied to pay for gratuitous services or services rendered in expectation of a legacy. Grandin v. Reading, 2 Stock. 370; Johnson v. Hubbell, 2 Stock. 332; Jacobson v. Ex'rs of Le Grange, 3 Johns. 199; Martin v. Wright, 13 Wend. 460; Little v. Dawson, 4 Dall. III.

But will the law raise an implied promise to pay money when there was an express promise to pay in land? The answer is, that the promise to pay in land was void, and therefore no promise. If the plaintiff had erected the buildings upon the intestate's land at his request, the law would have implied a promise to pay for them. The plaintiff is in no worse situation because the defendant made an express promise to pay for the services in a particular mode, which

promise is itself a nullity. The true principle, says Mr. Chief Justice NELSON, is this: "The contract being void and incapable of enforcement in a court of law, the party paying the money or rendering the services in pursuance thereof may treat it as a nullity, and recover the money or the value of the services rendered under the common counts. This is the universal rule in cases where the contract is void for any cause not illegal, if the defendant be in default." King v. Brown, 2 Hill 486.

The principle seems to be perfectly well settled, and is sustained by very numerous authorities, that where a party to an agreement void by the statute of frauds fails to execute it, the price advanced, or the value of the article delivered in part performance of the contract, whether in money, labor, or chattels, may be recovered back. Mavor v. Pyne, 3 Bing. 285; Gray v. Hill, Ry. & M. 42; Gillet v. Maynard, 5 Johns. R. 85, and cases cited in note a; Shute v. Dorr, 5 Wend. 204; Lockwood v. Barnes, 3 Hill 128; Abbott v. Draper, Den. 51.

4

In all such cases the law raises by implication a promise to repay advances made upon the faith of the contract, and for which no consideration has been paid. If, as a consideration for the improvement, the intestate had agreed to devise to the plaintiff a different tract of land from that upon which the improvement was made the case would be clear of difficulty. But as the improvement is made upon the farm agreed to be devised, it may be urged that the improvement was made not for the benefit of the intestate, but for the plaintiff's own benefit, inasmuch as he resided upon the farm during his life, and expected to receive it after his death. It is true. that where the vendee in possession under a parol agreement for the purchase of land makes improvements upon the premises he cannot recover the value of such improvements in an action at law, upon the refusal of the vendor to fulfil the contract. Gillet v. Maynard, 5 Johns. 85; Shreve v. Grimes, 4 Littell 224. The improvements in such case are not made at the instance or request of the vendor, nor for his benefit, but for the benefit of the party making them. The law, therefore, will imply no promise by the vendor to pay for them. But this case does not fall within that principle. The plaintiff was not in possession under a contract for the land, but as tenant from year to year paying rent. The improvements inured to the benefit of the intestate. He might, upon the completion of the improvements, have turned the plaintiff out of possession, or demanded and received an increased rent for the premises during his life. He was instrumental in having the improvements made. The plaintiff refused to make them until he had his father's promise that the land should eventually be his. The improvements were not only made by the procurement of the intestate, and for his use, but his estate has actually received the increased value of the improvements made by the money and the labor of the plaintiff. There seems no good reason, either in law or equity, why the jury may not

infer a promise to pay for them. If it be objected that the evidence in the cause admits of a different interpretation, and that the terms of the contract were different from those above stated, the answer is, that what is really proved by the evidence was a question of fact, and should have been submitted to the jury. * * *

1

HAWLEY v. MOODY.

24 VT. 603.-1852.

ASSUMPSIT. Plea, the general issue, and trial by the court. On trial, the plaintiff gave evidence tending to prove, that on the 11th day of July, 1851, he contracted with the defendant for a lease of the defendant's tavern-stand in Waterbury (called the Waterbury House), for one year from and after the first day of September, 1851, for six hundred dollars; and paid the defendant at the time. one hundred dollars, in a gold watch, which defendant received as a payment of one hundred dollars toward the rent. And it was further stipulated at the time, that the parties should meet at Mr. Dillingham's office as soon as he returned home (he being absent that day), and execute a written lease. The contract was all in parol. The plaintiff called upon the defendant for the lease, and the defendant soon after, on the same day, tendered the watch back to the plaintiff, which the plaintiff refused to receive, and the watch. was afterward attached by one of the plaintiff's creditors, and sold on execution against the plaintiff. The defendant, on the 14th day. of July, 1851, leased the same premises to one Howard for one year, and declined to lease them to the plaintiff. The plaintiff tendered to the defendant, on the first day of September, 1851, five hundred. dollars in specie, and demanded a lease of the premises, according to the contract, which defendant declined.

The county court, March term, in Washington county, 1852, POLAND, J., presiding,-adjudged that plaintiff could not recover, and rendered judgment for defendant. Exceptions by plaintiff.

REDFIELD, J.-I. The statute of frauds in this state contains no exception of leases, or contracts for leases in futuro, as is found in the English statute and in some of the other states. This case falls, therefore, within the statute.

* *

4. The only remaining inquiry then is as to the effect upon the title of the watch, of defendant's refusal to complete the contract. If this were to be regarded like the case where one is induced to purchase property, by fraudulent representations, and where, upon

"If the plaintiffs, in consideration of an agreement which was within the statute of frauds, and which the defendant declined to carry out, expended money in building upon his land, they might maintain an action to recover the cost of such building."-Parker v. Tainter, 123 Mass. 185 (1877).