The contract between the parties was void, by the statute of frauds. The full performance of it by the plaintiff, and a partial performance by the defendant, did not take it out of the statute, as to what remained to be done. (Duncan v. Blair, 5 Denio, 196.) It follows that the plaintiff could not maintain an action on the contract, at law, for the non-performance of it by the defendant, so far as it was *94unexecuted, assuming that the defendant was in default. The contract being void, it could not be the foundation of an action. If the plaintiff had any remedy at law, it was in the form which V he has selected, upon the general counts. (King v. Brown, 2 Hill, 485.)
I am not aware of any sound principle in the way of a recovery in this form of action. The plaintiff has transferred his property to the defendant, under a special agreement as to payment, which was invalid, but not illegal. If the defendant has failed to perform the agreement, and is in default, it is obviously just that he should pay the plaintiff the balance of the value of the property unpaid, and I think he might be compelled to do so in the mode pursued. Upon the breach of the agreement by him, the law implied a promise on his part to pay such balance, which promise is a sufficient basis for the action. (King v. Brown, before cited.)
It was not, in my opinion, necessary that the plaintiff, in order to entitle himself to maintain an action on the common counts, should return, or offer to return, what he had received of the defendant. The doctrine in respect to the rescission of contracts, that where a party would rescind, in a case where he may do so, he must put the other party in statu quo by an entire surrender of every thing he has obtained under the contract; and of the necessity of such rescission, in order to maintain an action for the value of property parted with under it, as upon a general sale, and without regard to the terms of the contract, has not, I think, any application to this case. It applies only to cases of valid contracts. In such cases the doctrine is certainly reasonable and just. When a contract is valid and subsisting, and the law affords a remedy upon it, it would be opposed to the contract, and inequitable to allow a party, at his election, another remedy, irrespective of the contract, for what he had done under it, unless upon the terms of a previous complete rescission as above mentioned. There is an inconsistency between retaining benefits under a contract, and maintaining an action upon the idea that there is no contract. Either the contract should be abided by, and the remedy upon it resorted to, or it should be *95fully given up, with all that has been obtained by virtue of it. These reasons do not extend to a case where the parties have undertaken to make a contract which is invalid. In such a case, in the view of the law, there is no contract. In respect to any binding obligation, the contract must be excluded from consideration. The remedy of either, for what he has done under it, when the other is in default, is not upon it, but independent of it. If he has received in part the value of what he has parted with, he may retain it, and sue for the balance due. The case is the same, in legal effect, as if he had transferred his property, upon a general understanding that he should be paid its value, and part of the value had been paid him. There is nothing inequitable in treating the transaction as having that legal character. (Martin v. Roberts, 5 Cushing, 126.)
It was claimed on the part of the defendant that the contract in this case has been so far performed, that in equity a specific performance might be enforced, and that therefore the contract must be regarded as subsisting and in full force. The answer to this position is that the doctrine of specific performance in equity, in such cases, rests upon the ground, not that the contract is rendered valid by part performance, but that the part performance would work a fraud upon the party, unless the contract was carried into complete execution. (Story's Eq. Jur. § 759. 4 Kents Com. 451, 4th ed. and notes.)
The breach of the contract, by the defendant, was doubtless necessary to be shown, to maintain the action. The law would not imply a promise, on his part, to pay the value of the property he had‘ obtained, so far as it remained unpaid, while he was not in default. Although the contract was not binding, the circumstances might be regarded so far as to refuse a remedy to the plaintiff independent of it, until he had put the defendant in the wrong. (Abbott v. Draper, 4 Denio, 51.) Upon this part of the case I have no difficulty. The proofs were conflicting; whether the defendant was to convey to the plaintiff what was called the carding machine property, or a debt against Campbell, arising from the sale of that property. If the former was the agreement, the plaintiff failed to establish that the de*96fendant was in default. The justice at the circuit advised the jury that if they came to that conclusion, in respect to the agreement, the plaintiff was not entitled to recover. As the verdict was for the plaintiff, it is fair to infer that the jury found the defendant was to transfer the debt against Campbell, instead of to convey the property; and if so, the default of the defendant was clear. The debt never existed. The agreement for the sale of the property to Campbell was by parol and void, and he abandoned it. The defendant never had it in his power to perform, so far as related to the transfer of such a debt. (Delamater v. Miller, 1 Cowen, 75. Lovett v. Cornwell, 6 Wend. 369. McNish v. NcCoon, 13 Wend. 26.) It would be improper for the court to hold there was not sufficient proof that the defendant was in default.
[Monroe General Term, September 6, 1852.Selden, Johnson and T. R. Strong, Justices.
The views presented cover the points on the part of the defendant. Some exceptions were taken by him which are not embraced in his points, and which therefore is not necessary to consider.
My opinion is that a new trial should be denied.