The complaint was in four counts, claiming on the common counts, for account, account stated, services rendered, and money had and received; the claim being for services rendered as deputy sheriff to the defendant as sheriff of Cherokee county. The defendant, besides the pleas of non-assumpsit and payment, filed pleas 3, 4, and 5. Plea 3 was a plea to the effect that the claim was for services rendered on an entire contract, which the plaintiff, without fault on the part of defendant, had failed to perform. Pleas 4 and 5 were in effect pleas setting up the statutes of fraud, in that the contract upon which plaintiff's claim is based was not in writing and not to be performed within a year. Demurrers to these pleas being overruled, plaintiff's replications to plea 3 setting up first a general denial and second alleging a breach of the contract by defendant as a cause for its termination, demurrer to this replication was overruled. plaintiff also replied to plea 4, to the effect that under the contract he performed Certain services for defendant, which defendant accepted to his benefit, etc.
It is unnecessary we think to enter into any extended discussion of the question raised by plea 3 as to whether the contract between the parties was entire and nothing to be due under it to the plaintiff except upon complete performance. Plea 3 is not a plea setting up the statute of frauds, and if it is intended to be a plea alleging an entire contract and its nonperformance, it falls short in its averments, and the plaintiff's demurrer should have been sustained. 6 R. C. L. 972, § 345. But even if taken as a good plea, plaintiff's replication to the plea was a good answer and presented an issue upon which testimony was offered and to which the general verdict will be referred.
Aside from plea 3 and the issue raised under it the issues made by the pleadings are: A claim for services rendered; a plea that the services rendered were rendered under a contract, void under the statute of frauds; a reply admitting the invalidity of the contract, but alleging part performance of the service and its acceptance by defendant.
Plea 5 seems to have been completely ignored in the trial and the judgement entry recites the issues entirely eliminating this plea. But this is of no consequence, as the issues as framed embrace every defense set out in plea 5.
Whatever may be the law in other states, in this jurisdiction the partial performance of a contract, void under the statute of frauds, does not take it from under the influence of the statute (Colony v. Harrell, 182 Ala. 243, 62 So. 511; Scoggin v. Blackwell, 36 Ala. 351), so as to permit a recovery under the contract for any part of the contract remaining executory. But where there is an oral contract for services, not to be performed within a year, and therefore void under the statutes of frauds, either party may terminate the relations at will. And while an action cannot be maintained for a breach of the contract which is void, under the statute, a recovery at law may be had for services rendered under it. Sims v. McEwen's Adm'r, 27 Ala. 184, 25 R. C. L. 719, § 365. The foregoing is in line with the principle announced in Hays v. Goree, 4 Stew. P. 170; Nelson v. Webb, 54 Ala. 436; Crawford v. Jones, 54 Ala. 459; Crommelin v. Thiess Co., 31 Ala. 412, 70 Am. Dec. 499; Smith v. Pritchett, 98 Ala. 649, 13 So. 569. Under the foregoing authorities the court did not err in overruling defendant's demurrers to plaintiff's replications, and that part of the court's oral charge to which exception was reserved is without error. The replication of plaintiff did not seek a recovery on the void contract, but sought to avoid defendant's plea to plaintiff's demand for services already rendered and accepted by defendant, and was therefore in the nature of an estoppel. The statute of frauds is designed to protect the innocent, and not aid in defrauding him who in good faith has rendered service or paid money for another, which that other has received and benefited by.
The evidence was in conflict on the issues presented, and therefore the court did not err in refusing to give at the request of defendant the general charge.
The court refused to give at the request of the defendant in writing the following charge:
"The court charges the jury that you would not be authorized to consider any terms of the agreement of these parties in reaching your conclusion as to the reasonable value of the services of the plaintiff."
There is respectable authority which holds to the view that in an action on quantum meruit, growing out of a claim for services rendered under a contract void under *Page 352 the statute of frauds, the employee is allowed to use the contract as evidence of the value of his services. And, this seeming to us to be "fair play," we so hold. 25 R. C. L. 723, § 370; Murphy v. De Haan, 116 Iowa, 61, 89 N.W. 100; 20 Cyc. 300.
Charge 3, requested in writing by the defendant, was properly refused, for the reason that it misplaced the burden of proof. The burden was on the plaintiff in the first instance, but, having been met, the burden of proving payment was on defendant. The charge was bed.
Any testimony showing or tending to show what work plaintiff did or had done was admissible, whether the arrangement to have the work done or the work was done in the presence of the defendant or not.
We find no reversible error in the record, and the judgement is affirmed.
Affirmed.
On Rehearing. The excerpt from the court's oral charge, set out in appellants' third assignment of error, does not appear from the record to have been excepted to, and therefore perhaps should not have been adverted to in the opinion, but when taken and considered as delivered by the court, as appears from a reading of the charge itself, asserts a correct proposition of law, and is in line with the court's other rulings.
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