The opinion of the Coart was delivered by
Willard, A. J.If the plaintiff was entitled to recover the contract price agreed upon, either under the special count, or the indebitatus assumpsit, then the ruling below was erroneous. The contract was clearly, at its inception, within the Statute of Frauds. It was a contract, on the one hand, for labor and service for the period of a year, to commence at a day subsequent to that of the making of the contract, and on the other side, for payment for such labor and service, in specific personal property, at the termination of such period. As the contract-was not in writing, neither party could have enforced it, apart from the effect of complete or practical performance had under it.
The plaintiff has, however, rendered the labor and service intended by the terms of the contract, and now seeks to recover the value of the specific property, which, according to the terms, he ought to have received at the completion of performance on his part.
*304When labor and service are rendered at the special instance and request of another, the law implies a promise to pay for the same; if there is an express promise to pay, the implication does not arise, for implication only supplies that which is not otherwise evidenced. Where the price is not fixed by agreement a promise is implied to pay what it is reasonably worth. A promise may be implied to pay a particular sum, or to perform a particular act, where, although the parties may have been silent, it is evidenced by attending circumstances, that they had mutually in mind such sum or particular act as the consideration of the performance of such labor or service.
It is to be inferred in the present case, that the performance of what was required by the contract to be -done on the part of the plaintiff, was mutually understood, at the time of such performance, to be conditioned on the performance by the defendant of that which he had engaged to do, according to the terms of the contract. Such being the case, a promise is to be implied on the part of the defendant to do that which the contract required him to do.
As this action can be supported upon such implied promise, it is not necessary that the plaintiff should rest his demand upon the original contract, which was affected by the Statute of Frauds.
The objections that may be anticipated to such an implication are; first, that the whole transaction having originated in an express contract, no ground for the implication of an implied contract exists; and, second, that the contract being originally void under the Statute, it cannot be resorted to for the purpose of such collateral proof as is essential to lay the ground work for such an implication.
In order to defeat the implication on the ground that the transaction was within the terms of an express contract, it would be necessary to show that such contract was proper evidence of the intent of the parties; but this is prevented by the operation of the statute, which acts directly upon the value of the contract as evidence of such intent. As to the second objection, this action, considered a proceeding upon an implied promise, is not based upon the original contract, and therefore is not within the terms of the Statute of Frauds. The statute does not prevent the contract from being looked into, as matter of evidence, for any other purpose than that of supporting an action founded upon it. Again, in looking into the agreement for the purpose of characterizing the implied promise to pay, it is regarded, not as an agreement, but as part of a *305transaction between the parties; whatever obligatory force may attach to it, arises out of the subsequent fact of performance, and not upon the assumption that the agreement itself is competent proof of such obligation.
While it is to be regarded as a contract without obligation, it is capable of entering into, and forming part of the transaction connected with it.
It is evident that the promise implied, as arising on the completion of performance, is, in itself, not affected by the Statute of Frauds, for it was a promise of immediate compensation of the kind contemplated by the original agreement.
It will not be necessary to consider whether, under any circumstances, a promise implied by law is within the Statute, although such a proposition would not be without at least indirect support from the adjudicated cases.
It will be found that the grounds of the foregoing conclusions have abundant support in the adjudicated cases. The leading cases will be considered in their bearing on the propositions.
Gee vs. Hicks, Rich. Eq. Ca., 5, throws important light upon this question. By the agreement in that case an act was to be performed within the year, the pecuniary compensation for which was to be paid after the expiration of such year; the act required was, in fact, performed within the year, and it was held that the contract was not within the Statute.
The conclusion of Judge ONeall was, that to bring a contract within the Statute, it must appear that neither part was to be performed within the year, and he concludes that if the consideration is executed at the time the contract is made, or is intended to be, and is performed within a year, the contract is not within the Statute. So far, what is said may be regarded as having reference to the validity of the original contract, but what follows clearly applies to a promise implied from the fact of performance. He says : “ if a contract, not to be performed within a year, is, after the expiration of the year, entirely executed by one party, at the request or by the consent of the other party, then the promise to pay for this performance cannot be within the Statute.” He considers Maver vs. Pyne, 11 E. C. L., 41, as holding, that there is an implied promise to pay, arising on the delivery of goods, according to a price agreed upon, although that price was fixed by a parol contract not to be performed within a year. It is not necessary now to examine the question, whether all contracts based upon executed con*306sideratiops are beyond the Statute, that question not being involved in the present case. A case is possible, that may not have been before the mind of the Court, as where one, in consideration of a sum of money, presently paid, agrees to perform some act at a future time, intended to be beyond a year from the agreement. The case that was evidently in the mind of the Court was that of a beneficial act, presently performed, to be compensated for by a pecuniary sum payable after the year, and there is strong ground in the adjudicated cases for the support of such a proposition. Gee vs. Hicks did not, however, rest upon the propositions advanced, involving the idea of a new promise, either express or implied, arising on performance, and the point must, therefore, be regarded as open.
In Bates vs. Moore, 2 Bail., 614, the contract was also capable of being performed within the year, payment being only postponed beyond the year.
Although, under the ruling in Gee vs. Hicks, this contract was originally valid, yet so strong was the impression on the mind of Judge O’Neall, derived from a promise implied from the fact of performance, that he again adverts to that principle. He says, after referring to the fact of performance on the part of plaintiff, “ and this created a liablity on the part of the defendant, to pay for them according to the contract.”
In Wood vs. McGee, 3 McC., 421, where there was a parol contract for the sale of land, Judge Nott observed, that where the contract had been executed by the delivery of the title and land, it is no longer a contract relating to land, hut a promise to pay the purchase money.
We have reason to believe that the learned Judge, in using this expression, had before his mind the promise implied from the fact of performance, and not the original contract. He cannot be supposed to have affirmed that the contract had changed its character by being in part performed ; such a conclusion would be in direct conflict with what was held in Cocking vs. Ward, 50 E. C. L., 858.
In Compton vs. Martin, (5 Rich., 14,) it was held that a parol contract, though void under the Statute, would operate so far as to sustain the title of one as lessee for years of a slave under such contract, as against the party delivering the slave. If such a contract can operate to support the title of a lessee under it, it is evident that it can support an implication of a promise to pay purchase money, according to its terms.
In Jones vs. Mitchell, (12 Rich., 176,) the only question appears *307to have been, whether the contract was intended to survive the original parties; no opportunity was, therefore, afforded for the application of the principle now under consideration.
Donellan vs. Read, (2 B. & Ald., 899,) and Cherry vs. Henning, (4 Exch., 631,) were both cases in which the contracts were held not to be within the Statute, upon the ground that they were to be performed within the year, although to be compensated for by payments made after the year. Littledale, J., says, in the former of these cases, in reference to the Statute, “ and surely the law would not sanction a defence on that ground, where the buyer had the full benefit of the goods on his part.” Where the equity and justice are so strong as to form an element in considering the construction of a Statute, they are certainly strong enough to raise a new promise out of the acceptance of the benefits of the contract.
In Maver vs. Pyne, (11 E. C. L., 104,) Best, J., held that the Statute of Frauds does not operate to prevent a person from being compelled to pay for what he has actually received. The proposition now under consideration is but an artificial mode of expressing this same idea.
Cockiny vs. Ward, (50 E. C. L., 838,) involves an analogous principle. There, although the contract was void under the Statute yet the plaintiff was allowed to recover upon an aeeount stated, upon the ground of an express promise made after performance. The necessity for an express promise in that case arose out of the fact that the plaintiff claimed to recover upon account stated. Had the plaintiff claimed to recover on an implied promise, there is nothing in the case inconsistent with the idea of his recovery.
It will be observed that the last mentioned ease seriously questions the proposition, that performance on one side of a contract within the Statute, is to be regarded as so far complete performance of the whole contract, that the Statute will not apply to .an action to enforce the other side. If, however, the proposition now under consideration is sound, the discussion of the effect of performance on one side, upon the original contract, will become practically unimportant, for an implied promise springing up in such eases, will always form a new ground of right in the party who has actually performed.
Lockwood vs. Barnes, 3 Hill, N. Y., 128, sustains the right of a party to recover on a quantum meruit who has rendered service under a contract void under the Statute. If the law finds a consideration adequate to raise a promise to pay on a quantum meruit it will *308certainly go a step farther, and enquire whether that consideration was affected by either an express or tacit understanding as to the measures by which it was to be compensated.
It is clear, on the authorities, that the proposition under consideration is in harmony with all the decisions, and affords a means of reconciling what little want of argument appears among them on this subject. It is certain that all these cases have been greatly influenced by the manifest injustice of allowing a party, after having obtained the advantage of a contract, to fly to a Statute, intended to prevent frauds, for impunity in refusing performance of his corresponding obligation. It is fortunate that a principle presents itself, by which this injustice may be avoided, without putting forced and unnatural constructions upon the language of the Statute.
The rulings were erroneous in excluding the plaintiff from recovering, according to the terms of the original contract, under a promise evidenced by the fact of performance by the plaintiff, accepted by the defendant.
There should be a new trial.
Moses, C. J., and Wright, A. J., concurred.