The opinion of the court was pronounced by
Pejjslps, J.— This case comes before us upon a special report of the auditor. It seems, that the auditor, upoií the facts stated in his report, found for the defendant; the county court ' reversed that decision, and gave judgment for the plaintiff. To this the defendant excepted, and the question now is, which of the parties, upon the facts found, is entitled to judgment. An exception is taken to the form of the action, which we do not think well founded. If the plaintiff be entitled to recover at all, the claim becomes a mere claim for services at a fixed monthly compensation, and an ordinary subject of book charge, and of recovery in this form of action. The objection that thé^, special contract precludes a recovery, depends upon the terms and effect of that contract, and goes to the merits, rather than the form of the action. The effect of the contract upon thisp^ question, depends upon the inquiry whether the performance of the labor is a condition precedent to the right of recovery, or, on the other hand, whether the promises are independent.
The subject of dependent and independent covenants, or promises, is much perplexed, and so much ingenuity and learning have been expended upon it, that, like some other branches of the law, it seems to be involved in a sort of artificial embarrassment. If, in this case, the plaintiff had stipulated for a A gross sum, to be paid at the expiration of his service, the per-l formance of the labor would doubtless be regarded as a condi-| tion precedent. But as the compensation was at a certain rate'1-'per month, if it should appear that payment was to be made as fast as it was earned, the case would be different. The auditor - does not report when the wages were to be paid ; but fortu- 1 nately there is a fact stated in the report, which relieves us from all difficulty on the subject. It is clearly competent for " *386the parties to make their undertakings dependent, or independent, as they deem expedient; and where their intent is ‘ascertained, it is decisive of the question. In this case, the stipulation that the plaintiff should have nothing for his services, if he left the service of the defendant before the expiration of I the three years, makes the performance of the whole service a condition precedent^ and if that part of the contract be binding upon him, he cannot recover.
It is argued, however, that the contract is void, by force of the statute of frauds. Admitting that this contract is within the terms of the statute, yet it may be well to inquire, what is the effect of the statute upon it. Although it is common to speak of a contract as void by the statute of frauds, yet, strictly ■«JJ speakingfthe statute does not make the contract void, except J j I for the purpose of sustaining an action upon it, to enforce it.//] y^The statute provides, that no action shall be sustained upon » ' certain contracts, unless they are evidenced by writing. It' ' operates therefore upon the contract, only while it is executory. It does not make the performance of such a contract unlawful, but, if the parties choose to perform it, the contract remainsjn full force, notwithstanding the statute, so far as relates to the legal effect and consequences of what has been done under it. Hence a party may always defend under such a contract, when sued for any act done under it. Thus, suppose a crop of grass is sold by pároli?, and the vendee enters upon the land and cuts it. If an action of trespass should be brought against him, by the vendor, upon the ground that the contract was void, still, although the contract is within the statute, it would furnish a sufficient defence, because it is executed; This very case affords an illustration of the effect of the statute. If the defendant had sued the plaintiff for not performing the contract, in not serving the full period, the case would be open to a de- , fence under that statute; the contract being, to the purposes of such a suit, executory, and the attempt being to sustain an ac- ' ; tion on it as such. But in this cose, the contract, so far as the , service has been performed, is executed, and is relied oh as l .regulating and determining the right of the plaintiff to com-f pensation for what has been done under it. We are here cgn- * .cerned.only with what has been done. The question is, what ♦ the plaintiff is entitled to for his labor; and this depends upon the terms of the contract, under which he performed the ser- / vice. Had the whole service been performed, the rate of com*387pensation would, without doubt, be regulated by the terms of the contract. No court would discard that contract, and resort to a quantum meruit. The principle is the same as to a performance in part. The defendant may be without remedy, for the desertion of the plaintiff, but he may certainly protect himself as to what has been done.
Any other rule would be productive of monstrous injustice, and make the statute an instrument of fraud. It is on this ground, that courts of equity will enforce a contract of such a nature, which is partly performed, where the party cannot be made good, without a full-performance. The statute was merely intended to prevent frauds, by setting up and enforcing, by parol proof, simulated contracts, and hence is called the statute of frauds and perjuries. It was not intended to vary or control contracts, which the parties have voluntarily carried into effect; nor to deprive parties of the protection of such stipulations as they may have made for their security, and in reliance upon which they have acted.
This construction is the only safe one that can be given to the sta e, and it is the only one which has ever been given to it. £ jpose a party enters into possession, under a parol lease ¡ years; was it ever imagined that he could be made liable a trespasser ? Suppose a promise to pay the debt of anotl and the debt actually paid. Was it ever attempted to rece ¿r back the money by force of the statute?
"W e are the more satisfied with this view of the subject, as we are persuaded that full justice will be done by it. The plaintiff is doubtless amply compensated, for the loss of the stipulated wages, by the instruction received, and the enhanced wages which he may obtain elsewhere in consequence; and the defendant gains nothing, as he loses the services of the plaintiff when they become more valuable.
It only remains to add, that this case falls most clearly within, the decision of Hare vs. Bell, ante. p. 35.
Judgment reversed, and judgment for the defendant.