p. 210W. Saulsbury, for the defendant,
submitted a motion for a nonsuit, on the following grounds: That the special counts, as well as the promise alleged and relied on, showed that it was substantially an action on a contract for the sale and conveyance of land, which was void, unless it was in writing, under the statute of frauds. The plaintiff therefore could not recover on the special counts, or on -the special agreement. Eor could he recover on the common counts; first, because he had proved a special contract, and in the next place, because it was an action by a son against the executor and representative of his father, and as between such near relations the law would' imply no promise to pay for the work and labor, but a positive and • express promise to pay was necessary to support the action, and no such promise as the law required in this class of cases had been proved. xE. D. Cullen, for the plaintiff:
If the plaintiff failed to recover on the special counts simply because he had failed to prove that the special contract alleged was reduced to writing, and not because he had proved a special contract different from the one alleged in the declaration, then he | might fall back on the common counts, and recover upon the quantum meruit, and the implied promise to pay for his work and labor. But the testator was not to pay for it in money; he was to compensate the plaintiff for it by a devise of land to him in his will. This, however, he had not done; yet the plaintiff was entitled to recover on the common counts. Although he could not recover on the special contract for the reason assigned, yet a party could recover in an action for work and labor performed and to be paid •for by a provision in a last will and testament, such compensation as the jury might consider his services reasonably worth. 3 Johns. 199 ; 13 Wend. 460 ; 2 Hill, 576 ; 13 Johns. 379 ; Add. on Contr. 213; 7 Cow. 92 . A paroi contract to pay for services by the conveyance of a piece of land on their being performed, was not void under the statute of frauds, 'but the plaintiff could recover for the
p. 211work and labor, as the object of the action was not to enforce the agreement to convey the land, but to recover compensation justly due for the labor performed, and for this purpose the agreement to convey the land might be treated as an entire nullity. 7 Cow. 92 ; 2 Hill. 485 ; Chit. on Contr. 582; 2 Saund. Pl. and Ev. 1295.W. Salisbury, in reply,
contended that the plaintiff, if he could recover at all, must recover on the special, but could not recover on the common counts; for which he relied on the case cited from 7 Cow. 92 . He also argued against the ruling of the Court in the case cited from 2 Hill, 485 .To allow the plaintiff in this action to recover the value of the land which it is stated the father had agreed to devise to him in his will, in consideration of his remaining with him and working for him until the father’s death, would be in contravention both of the letter and the policy of the statute of frauds. The plaintiff therefore cannot maintain the action on the special counts, or upon the special contract set out in them, because it1 was not in writing. But he may recover on the common counts, by way of damages, such compensation for the work and labor performed by him, as the jury may consider his services to have been reasonably worth, according to the evidence before them" on that point; and this principle we consider is clearly established by the ruling in the case cited from 2 Hill Rep. 485 , in which we concur.
There is one fact in this case which distinguishes it from all the cases which had been cited, on the question of pleading, which had been raised and discussed in the argument, which the Court would notice in support of the point just ruled, that the recovery could not be on the special but must be on the common counts, for the work ,and labor merely, without any reference to the value of the land to be devised as a compensation for the service, and that is the fact that the special agreement alleged was not actually performed by either party, although, as the case now pre
p. 212sents itself to the Court and jury, the plaintiff was prevented from performing and completing it on his part by the testator. According to the evidence, as it now stands, the plaintiff was prevented from performing the contract, that is to say, from remaining with and working for his father until his death, by reason of the displeasure of thé latter on account of his marriage, and his discharge from the service. But an action cannot be maintained on a special contract which has not been performed, although the party who has been prevented from performing it by the default of the other may recover in an action of
indebitatus assumpsit on the common counts, for his services and expenses under the special contract, done, or incurred in the partial performance of it. We therefore think, as the case is now presented, the plaintiff' is entitled to recover on the common counts for work and labor, according to the actual value of his services, without any reference to the value of the land to be devised by the terms of the alleged special agreement, provided the jury should be satisfied from the evidence that he was ejnployed by his father, the testator, to perform them, under an actual or express promise by the latter to pay or compensate him for them when performed, which was a question for the jury alone to decide. The motion for a nonsuit is therefore refused.
C. S. Layton and E. D. Cullen, for plaintiff.
W. Saulsbury, for defendant.
The case afterwards went to the jury on the charge of the Court, reaffirming the same views announced on the motion for a nonsuit, and the plaintiff had a verdict for the value of his services proved.