Galvin v. . Prentice

Rapaxlo, J. That part of the charge of the- judge; in which he instructed the jury, that the contract, although void, might be considered prima facie evidence of the value of the services, was, under the circumstances of this'case, erroneous; and the exception thereto, was well taken. The contract price of the services, was "fixed with reference to a continuous service of three years. It appeared, upon the plaintiff’s own showing, that the contract was that he should *164 work for three years, and be paid the portion of bis wages, now in question, only in case he served three years, or was discharged for want of work. The plaintiff claimed that he had been discharged, but the evidence on that point, was conflicting, and the judge charged the jury, that the discharge had nothing to do with the ease. It cannot be assumed, therefore, that the fact of discharge was established. It appeared that the plaintiff was to learn the business in which he was employed. It cannot be supposed that his work was of the same value during the prior part of the term of his employment, as it would be during the latter part, when his proficiency must naturally have increased. The price agreed upon for the three year's, was not, therefore, competent evidence of the value of the services during the first and second years, and the contract being void by the statute, could not be so far enforced as to determine the rate of compensation. The exception to the ruling on that point, is fatal to the judgment. But it must not be inferred that we agree to the proposition, that if there had been a correct ruling on the question of damages, the plaintiff would have been entitled to recover without proving that he was discharged, or that the defendant was in default. Where payments are made, or services rendered upon a contract, void by the statute of frauds, and the party receiving the services or payments refuses to go on and complete the performance of the contract, the other party may recover back the amount of such payments, or the value of the services, in an action upon an implied assumpsit. But to entitle him to maintain such action he must show 'that the "defendant is in default. (King v. Brown, 2 Hill, 487.) The rule is very clearly stated in Lockwood v. Barnes (3 Hill, 128), as follows: “ A party who refuses to go on with an agreement void by the statute of frauds, after having-' derived a benefit from a part performance, must pay for what he has received.” *165 So in Dowdle v. Camp (12 Johns., 451), Abbott v. Draper (4 Denio, 51, 53), and (Collier v. Coates (17 Barb., 471), it was held that money paid on a parol contract for the purchase of lands, which is void by the statute of frauds, cannot be recovered back unless the vendor refuses to perforin; and to the same effect are numerous decisions of the courts of our sister States, referred to in (Collier v. Coates. The default of the defendant or his refusal to go on with the contract is recognized as an essential condition of the right to recover for services rendered or money paid under any description of contract void by the statute of frauds. (Erben v. Lorillard, 19 N. Y., 304, per Denio, J., and S. C., 302, per Grover, J.; Burlingame v. Burlingame, 7 Cow., 92; Kidder v. Hunt, 1 Pick., 328; Thompson v. Gould, 20 Pick., 134; see page 142.) When the contract is entire, and one party is willing to complete the performance, and is not in default, no promise can be implied on his part to compensate the other party for a part performance. The express promise appearing upon the plaintiff’s own showing, although it cannot be enforced by reason of the statute, excludes any implied promise. (Whitney v. Sullivan, 7 Mass., 109; Jennings v. Camp, 13 Johns., 96.) Expressum facit cessare tacitum. (Merrill v. Frame, 4 Taunt., 329; Allen v. Ford, 19 Pick., 217.) The effect of the statute is to prevent either party from enforcing performance of the verbal contract against the other, but not to make a different contract between them. An implied promise to pay for part performance can arise only when the party sought to be charged has had the benefit of the part performance, and has himself refused to proceed, or otherwise prevented or waived full performance (Munro v. Butt, 8 Ell. & Black., 738; Smith v. Brady, 17 N. Y., 173; 13 Johns., 94; 8 Cow., 63); or where, after the making of the contract, full performance has been rendered impossible, by death or otherwise, without fault of the contracting party. ( Wolfe v. Howes, 20 N. Y., 197.) *166 The judgment should be reversed, and a new trial ordered, with costs to abide the event. Peokham and Polger, JJ., concurred; Grover, J., concurred in the result on the ground of error in the charge; Ch. J. did not vote; Allen, J., dissented.