By the Court
Dwight, J.The paroi contract for the sale of the standing grass was void by the statute of frauds, so far as that it could not have been enforced by either party, but it was not illegal, and the parties were at liberty to perform it, if they saw fit. The plaintiff had received a portion of the property. He cannot maintain his action to recover the whole of the purchase price without making restitution, or compensating the defendant for the benefit which he has received. Honesty and fair dealing forbid it. (Abbott v. Draper, 4 Denio, 51.)
Besides, the action, as stated in the complaint, was not to recover back money paid under a void contract, but for damages by reason of the non-delivery of the grass by the defendant. The answer was sufficient to put in issue the amount of damage sustained by the plaintiff) and evidence of the amount of hay received by him was competent on the question of damages.
In either view of the case, therefore, the justice erred in excluding the evidence of the amount of hay received by the plaintiff, and in instructing the jury that the plaintiff was entitled to recover the whole of the purchase price paid.
The judgment of the County Court must be affirmed.
All concuring.'' Judgment affirmed with costs.