It seems to me clear that, upon this complaint, the plaintiff should not have recovered the verdict and judgment which was given him in the court below.
The complaint is the same that was dismissed upon the former trial, and it seeks to recover ujpon the conbracú as a valid one, and asks for the damages resulting from its breach, viz., the value of such contract. True, it was held error to dismiss such complaint upon the former trial, but it was entirely on the ground that no such issue had been tendered in this action; and the moment that the' defendant's answer was amended and such an issue was presented, it became apparent that the issue so tendered must prevail, and that no recovery could be had against the defendant upon the cause of action therein set forth.
Upon this trial, however, the plaintiff was allowed to prove, over the defendant’s objection, the making of that contract by parol and the defendant's breach of it; and the defendant’s motion to dismiss the complaint on the ground that such contract was void by the Statute of Frauds was denied.
This ruling seems to have been made on the theory that, while the plaintiff could not recover damages for the alleged breach, he could recover for the value of the services which he rendered for the defendant during the time he was at work there. But very clearly there is nothing in this complaint to suggest that the plaintiff intended to ask from this jury any such relief. As a matter of law the defendant became liable to pay to the plaintiff the fair value of his services rendered while working under the attempted contract that the defendant subsequently repudiated, but he was not liable to a judgment therefor in an action brought and tried for an entirely different claim. When the plaintiff rested, the defendant took the distinct objection that, the plaintiff could not, under this complaint, give evidence of the value of the services rendered to defendant by him and, therefore, could not recover for the same in this action, and he also insisted that there was no evidence of the value of such services.
In both of such propositions he seems to have been correct. There is no averment whatever in the complaint as to the value of such services, no evidence offered by the plaintiff of their value, *175and no evidence in the case concerning what the whole extent of such services were or as to what its actual value was.
The defendant then raised the question squarely that a recovery for the value of the services actually rendered could not be had in this action, and plainly they could not be had for the simple reason that nothing in the complaint indicated that the plaintiff sought any such relief in this action. (Reed v. McConnell, 133 N. Y. 425.) Also, it is very clear that the issue as to what such services were fairly worth was not tried in this action. Neither party offered evidence upon that question. It was not considered by either party an issue in the action until after the evidence was all closed and the trial judge left it to the jury to determine what the value of such services were and instructed them to render a verdict for that amount against the defendant. Very clearly the defendant has never had any trial of that issue. He was not apprised when the trial commenced that he must meet that issue, nor was he at any time during the trial invited to meet it. No evidence was ever put before the jury that enabled them to intelligently determine what the value of such services fairly was, and a comparison of the amount of their verdict with any evidence that can be found in the case on the subject of such value demonstrates how utterly that verdict was a matter of guess work.
We are asked upon this argument how the plaintiff can recover anything for the services that he actually rendered the defendant between the time the agreement was made and the time he was driven from the farm if the jury might not render him a money verdict for the same. No doubt a jury may give him such a verdict whenever he calls the defendant into court to answer to such a claim. Nor would it be necessary for the plaintiff to bring another action to so recover. He might as soon as the defendant tendered him the defense of the Statute of Frauds to the agreement between them have confessed his inability to recover damages for its breach and have amended the complaint so .as to avail himself of his right to recover for the services which he had rendered. And upon such amended pleading that claim could be properly and regularly litigated between the parties. But in this action the plaintiff has sought to recover, not for services rendered, but for the value of an alleged broken contract on the defendant’s part. And he insisted *176upon such a recovery to the extent even of declining to withdraw a juror and amend his complaint, and of excepting to the charge of the court which permitted the recovery he is now seeking to sustain, and of appealing from the judgment rendered thereon. True, he has now abandoned and withdrawn such appeal, and stands content with the verdict rendered; but his position is emphasized that, thus far, he has insisted upon his right under the contract to recover damages for its breach, and at no time has sought to recover for the amount which he actually earned.
For these reasons the judgment must he reversed.
All concurred; Parker, P. J., and Chester, J., voted to dismiss complaint.
Judgment and order reversed on law and facts and new trial granted, with costs to appellant to abide event.