This action was commenced in July, 1856, and in it the plaintiff claims to recover for fifty-nine and three-fourths days’ labor performed for the defendant, at the rate of $1.62J per day.
*399The labor was performed under a parol contract for a year’s labor at that rate, which was made in February, 185S, and was to commence the 1st day of April then next, and the wages to be paid semi-annually, on the 1st day of October and the 1st day of April next after the service was to commence. After the plaintiff had worked for the time for which he claims to recover, he left the service without cause, and merely because he was offered higher wages, and thus refused to perform his contract.
The superior court was of opinion that he was not entitled to recover, on the ground that the contract was entire, for a year’s service, which the plaintiff refused to perform, and was not, therefore, entitled to anything for what he had done under it. Were it not for the statute of frauds and perjuries, there could be no doubt as to the correctness of this opinion. 2 Phil. Ev., 115.
But the plaintiff relies upon that clause of the statute which provides that no suit in law or equity shall be brought or maintained upon any contract or agreement that is not to be performed for the space of one year from the making thereof, unless the agreement shall be made in writing, &c.; and upon the case of Gomes v. Lamson, 16 Conn. R., 246, in which it was held that a claim for labor, otherwise legal and just, could not be defeated, by setting up the non-performance of a contract on which no action could be maintained under this clause of the statute.
We do not feel called upon to decide this point in the case, because it appears to us, from the facts found by the superior court, that the suit was commenced before the debt was due, even if the plaintiff can maintain an action for the wages earned before he left the defendant’s service.
It is true, that if the plaintiff can recover at all, it must be for a quantum meruit, or so much as he deserves to have, for the service performed. But this is not to be measured by the value of such services alone, as if no contract had been made between the parties. Nor can the time of payment for the service, as it was agreed to in the contract, be disregarded. It would obviously be unjust for a party to contract *400to labor for a year and a day, at a stipulated rate of wages, to be paid at the end of the term, and, after he had labored half the time, refuse to go on, and demand immediate payment for the wages earned, before the expiration of the time.
The case of Comes v. Lamson shows that a just and legal claim can not be resisted, on the ground that the service was performed under a contract which is inoperative by reason of the statute; but this does not imply that services performed under such a contract, stand upon the same footing in respect to the compensation to be paid therefor, as if no such contract had been made. On the contrary, it is said in that case, that where a person has entered into a contract for service, and has made the performance on his part a condition precedent to his right to recover, he can not enforce payment till he has performed the service. And it may be added that, so long as there is nothing illegal in the condition, it does not become void merely because it constitutes part of the terms of a contract which can not be enforced by action.
In respect to the amount of compensation for such services, the rule must be the same as that which prevails where services have been performed under a special contract, the terms of which have not been complied with, but the services have nevertheless been of benefit to the other party, and he has accepted them by receiving the benefit. In this class of cases, we suppose the amount of such benefit, rather than the ordinary value of such services, is the rule. 2 Sm. L. C., 35,42.
In the case of Comes v. Lamson, it was said the parties contracted with full knowledge of the law which entered into and formed a part of the contract; and on the ground that they knew that no suit could be maintained on it, if it was not performed, the court would not presume that the intention was that nothing should be paid for any service less than the full term, which might be rendered under it. But had the contract been of such a nature as to exclude the idea of any compensation, unless the party served the full term, *401the fair inference is that nothing would have been recovered in that case.
That decision, then, does not go to the extent claimed for it on the part of the plaintiff, — that the terms of such a contract are to be wholly disregarded in a suit for wages earned under it; and that they can not be shown for any purpose. On the contrary, the reasoning of the court is based on the assumption that, for the purpose of showing that the claim for wages is unjust, the contract may be proved.
Now in respect to the question whether wages have been earned, which ought to be paid for, and if so to what extent or amount, and when the payment ought to be made, it appears to us that all the circumstances under which they are claimed to have been earned, including the contract under which the service was performed, although it may be one that can not be enforced by any action directly upon it, may and ought to be considered.
A person agrees to labor for another for a longer period than a year, at a low rate of wages: can he leave just before the expiration of the time, and then demand the ordinary rate? And, in such a case, can not the employer show the contract, in order to regulate the rate ? And if he can do it for this purpose, can he not also do it for the purpose of showing when, by the terms of the contract, he was to pay the wages ?
Where a person, who had been a slave in the West Indies, performed service for his master in England, where he was free, it was held that he could not recover for such service, unless he could show some subsequent express contract. Alfred v. Marquis of Fitzjames, 3 Esp. R., 3. Chit. on Cont., 575.
In Hartwell v. Jewett, 9 N. Hamp., 249, it was held, that though a servant may recover on a quantum, meruit, for part of the service performed under a hiring for a year, yet the action could not be brought until, by the terms of the contract, the wages would be due.
Now, by the terms of this contract, the first payment of the plaintiff’s wages was to be on the 1st day of October, *402but the suit was commenced in the previous July. We think, therefore, whatever may be the plaintiff’s right to recover after the wages became due, that this suit was prematurely commenced;" ¡and,although the case was not decided below on this point, yet as the facts expressly appear in the finding, and must be fatal to the plaintiff’s recovery on another trial, it is obvious that a new trial can be of no benefit to the plaintiff, in any event; and we therefore, without making any decision upon the point on which the case seems to have turned in the superior court, do not advise a new trial.
In this opinion the other judges, Waite and Stores, concurred.
New trial not to be granted.