The trial court dismissed the complaint at the close of'the:plaintiff’s evidence without making any findings of fact. As said in Lindenthal v. Germania Life Ins. Co. (174 N. Y. 76) “ The learned trial judge virtually decided that the plaintiff had not produced any proof at the trial sufficient to call upon the court to consider it and determine the facts in issue one way or the other.” The evidence is undisputed and plaintiff, is entitled on this appeal to the most favorable consideration that can be given to the facts presented by him,
Where a person performs services under a void contract or one that cannot for any reason be enforced, his recovery therefor should be measured by the value of the services performed. (Suth. Dam. [2d ed.] § 684 ; 20 Am. & Eng. Ency. of Law [2d ed.], 48.)
The complaint was dismissed by the trial court upon the assumption that the contract could not be enforced by reason of its being void within the provisions of the Statute of Frauds (Laws of 1896, chap. 547, § 224; Laws of 1897, chap. 417, § 21). In this assumption the trial, court was in error because the Statute of Frauds had not beén pleaded by the defendant. The question of the effect of the Statute of' Frauds upon the contract was not before the trial court and is not. before this court. If the defendant had desired to insist that the contract was not. enforcible by reason of the Statute of Frauds, he should have so stated in his answer, and the objection should have been made by him when the plaintiff’s. *143evidence was offered and also when he asked that the plaintiff’s complaint be dismissed,
In Matthews v. Matthews (154 N. Y. 288) the defendant had objected to proof of an oral contract on the ground that the samé was void by the Statute of Frauds, which objection had been overruled, and the court said, “ Subsequently to the decision of the former appeal in this case (133 N. Y. 681) the case of Crane v. Powell (139 N. Y. 379) came before the court in which the controverted question was whether in an action on an oral contract within the Statute of Frauds where the complaint did not disclose the nature of the contract, whether oral or written, it was necessary for the defendant to plead the statute in order to avail himself of the objection. The question was distinctly decided in that case, and it was held that the statute was a defense, and unless pleaded was not available to the defendant to defeat the action. The case must be regarded as settling the law of this State upon a question upon which courts of different jurisdictions have differed in opinion. This court regarded the rule adopted in Crane v. Powell as sound in principle and as supported by the rule applied in analogous cases. It is plain upon the view; that the Statute of Frauds does not make an oral contract within its terms illegal, but only voidable at the election of the party sought to be charged, that such election must be manifested in some affirmative way. The mere denial in the answer of the contract alleged in the complaint, when the character of the contract is not disclosed, is quite consistent with an intention to put in issue simply the fact whether any agreement was entered into, either oral or written.”
The opinion in Matthews v. Matthews has been frequently cited with approval by the Court of Appeals and by the several Appellate Divisions in this State. (Sanger v. French, 157 N. Y. 213; Honsinger v. Mulford, Id. 674; Hardt v. Recknagel, 62 App. Div. 106; Miller v. Munroe, 59 id. 623 ; Geneva Mineral Spring Co. v. Coursey, 45 id. 268; Crough v. Nurge, 44 id. 19.)
Taking the plaintiff’s evidence in its most favorable light it shows a contract for services as therein stated for which defendant was to give to the. plaintiff his farm when he got through with it, and money enough to buy another farm of equal value. We do not decide whether such contract is void under the Statute of Frauds. *144It is otherwise valid and sufficiently definite and certain in the work to be performed and in the compensation to be paid therefor to be enforeible. (Matthews v. Matthews, supra ; Schell v. Plumb, 55 N. Y. 592; Erwin v. Erwin, 44 N. Y. St. Repr. 6; affd., 139 N. Y. 616; Healy v. Healy, 55 App. Div. 315; Andrews v. Brewster, 124 N. Y. 433.)
A servant who has been wrongfully discharged may choose ■ one of three, courses : First, he may consider the. contract as rescinded .and recover on a quantum meruit what his services were worth, deducting what he had received for the time during which he had worked. Second, he may wait until the end of the term and then ¡sue for the full amount less any sum.which the defendant may have ¡a right to recoup.. Third, he may sue- at. once for breach of the ■contract of employment. (Sedg. Dam. [8th ed.] § 665; Howard v. Daly, 61 N. Y. 362; Schell v. Plumb, supra; Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205.)
The possible consequences of the breach of the contract should be deemed to have been in the minds of the parties -when the contract was made. The fact that the nature of the contract is such that plaintiff’s damages are difficult to be determined with accuracy, is not' alone sufficient to defeat plaintiff’s recovery. (Wakeman v. Wheeler & Wilson Mfg. Co., supra.) One of the facts to he taken into consideration in determining the damages that the plaintiff has sustained, is the probable, duration of the life of the defendant. The Northampton tables, although not conclusive, ;are competent evidence upon that question. (Schell v. Plumb, supra ; Wakeman v. Wheeler & Wilson Mfg. Co., supra; Empie v. Empie, 35 App. Div. 51.) They were offered in evidence by the plaintiff and excluded by the trial court. This also, was error.
The judgment should be-reversed and new trial granted, with oosts to the appellant to abide the event.
All concurred; Parker, P. J., and Smith, J., in result.
Judgment reversed and new trial granted, with’costs to'appellant 4o abide event. ' .