By the Court,
It is impossible to sustain the judgment in this case, however just and meritorious may be the claim, to the amount that has been recovered. The contract for the purchase of the land, resting in paroi, is void under the statute of frauds and cannot be the foundation of an action. I am aware of the intimation by Woodworth, J. in Burlingame v. Burlingame, (7 Cowen,
It does not appear from the report in Burlingame v. Burlingame, whether proof was admitted of the value of the land agreed to be conveyed for the services. Having tried the cause, I well remember that it was: not, however, as an independent measure of recovery, but as an item of evidence pertinent to the question as to the value of the services rendered, and for which the land was agreed to be given in compensation. The agreement in that case settled nothing, except that the plaintiff was to work for the defendant till he was 21 years of age, (some 3 years;) in consideration of which, the 30 acres were to be conveyed. Hence the materiality of the value of the premises, as that afforded some evidence of the understanding of the defendant himself in respect to the worth of the services. I have reason to know, the learned judge who there delivered the opinion, became satisfied he fell into an error in holding that the plaintiff should have declared upon the special agreement and could not recover under the general counts; and that he afterwards agreed the true rule was as laid down at the circuit.
In the case before us, the compensation for the work to
It is not important to enquire, whether a vendor who fraudulently refuses to perform the contract, and conveys to a third person at an enhanced price, might not be held responsible for the improved or enhanced value of the land, in an action brought upon the contract by the vendee; because in this case the agreement being void and not the subject of an action at law, even conceding the affirmative of the question, the plaintiff could not bring himself within the principle. In pursuing his remedy here, the contract must be laid out of view, as the cause of action rests entirely upon the work and labor done under it, unaffected by any question of damages that might have been involved, in case the agreement had been valid and the action founded upon the breach of it.
Judgment reversed.