Ham v. Goodrich

Eastman, -J. On the trial of this cause the plaintiff recovered a verdict for $300, which he now seeks to have set aside. The precise ground upon which this motion is founded is not stated, but we take it to be because the court did not instruct the jury that the measure of damages to which the plaintiff was entitled was the value of the farm; and because, also, that the court did instruct the jury that the benefit which the plaintiff derived from residing on the farm and receiving the income might be applied in payment for what was done under the agreement. "We discover nothing else in the case of which the plaintiff could complain. It is manifest that there could be no recovery under the first, second and third counts. Our statute of frauds is as follows: “ No action shall be maintained upon any contract for the sale of lands, unless the agreement upon which such action shall be brought, or some memorandum thereof, is in writing, and signed by the parties to be charged therewith, or by some other person thereunto lawfully authorized by writing.” Rev. Stat., chap. 180, sec. 7. The agreement between the plaintiff and the defendant’s intestate was for the alienation of the farm, and it was not in writing. It was, therefore, directly within the condemnation of the statute. No action could be maintained upon it, and nothing, of course, could be recovered for its breach. [190] As no action conld he sustained upon the contract, it appears to us that it would be an evasion of the statute to hold that, under the general counts, the agreement fixed the rule by which the damages should he found. The jury were instructed by the court that they might take into consideration the agreement, and all the circumstances under which the plaintiff went to reside with his father; and, under the instructions, they could, had they seen fit, have given damages equal to the value of the farm. But for the court to have gone further, and said that the value of the farm must be the measure of damages —that the jury were controlled by that — would have been giving, in one respect, full effect to the agreement, and would have made it the foundation of the verdict. The agreement was only evidence which the jury could consider, in connection with the other testimony, as showing the circumstances under which the services were performed, which were sought to he recovered under the general counts; and to give it a conclusive effect as fixing the damages would he to make it a binding contract, obligatory upon the parties, as much so as if it were in writing. The recovery of the plaintiff being founded upon the general counts, and upon them alone, the instructions of the court that what he received from the farm as he went along might be applied in payment for his services, were correct. "What did he reasonably deserve to have, under all the circumstances, was the question. The actual services performed by himself and family; the circumstances under which he went to reside there; the annoyance, if any, of the particular services rendered; the board of the defendant’s intestate; the income of the farm received by the plaintiff, and the board of himself and family; all these matters, and others that might be suggested, were to be considered by the jury in deciding what the plaintiff was justly entitled to and should receive. It was not necessary that there should have been any [191] set-off filed by tbe defendant. Payment is a good defence under tbe general issue; and tbe benefit which the plaintiff received from the farm was a proper matter for the jury to consider; not as a formal, legal set-off', but as a consideration that went to show what the plaintiff was entitled to recover on his quantum meruit. It is like the board of a servant who sues for his wages. On a quantum meruit the employer is not required to file a set-off of the items of board, but they may be considered by the jury as going to reduce the amount which the servant shall recover ; as a payment which is made, as the services are rendered. Looking simply at the facts stated in the case, the verdict would seem to be small, but we discover no legal ground for setting it aside, and there must be Judgment on the verdict.