7 See infra, Sec.Sec. 1473 et seq. 8 Ibid.

9 Britain v. Roasiter, 11 Q. B. D. 123, 127.

As a matter of actual decision, it cannot be assumed that a plaintiff in default will be treated in the same way under one class of contract within the statute as under another. Where money has been paid as the whole or part of the price under an oral contract to buy land, recovery of the money paid is almost universally disallowed if the seller is ready and willing to convey as he orally agreed,11 and one who has transferred

10 In Abbott v. Inskip, 29 Ohio St. 59, 61, the court said: "The express promise contained in the agreement, under which the plaintiff assumed to render the service, excludes the presumption of the implied promise relied on."

In Kentucky (where the statute does not make oral agreements wholly void), the defendant may use the oral agreement as a shield in several ways, the court saying: "If a party borrows money, to be returned in two years, whilst no suit could be brought to enforce such mere verbal promise, yet a suit to enforce the implied promise, created by law, to return the money on the valuable consideration, could be maintained. Nor would the contract be without effect in such case, for the defendant could use it to protect himself against suit until the expiration of the time, simply because the statute has not declared the contract void. He could also use it for the purpose of reducing the interest below the legal rate, if such had been agreed; but he could not use it to prevent a recovery of the valuable consideration which he had derived by virtue of its terms, because the statute was never designed for such purposes." Montague v. Garaett, 3 Bush, 297, 299. See also Roberts v. Tennell, 3 T. B. Monroe, 247, 262; Weber v. Weber, 25 Ky. L. Rep. 008, 67 S. W. 507.

11 Thomas v. Brown, 1 Q. B. D. 714; York v. Washburn, 118 Fed. 316, affd.

129 Fed. 564, 64 C. C. A. 132; Venable v. Brown, 31 Ark. 664; Laffey v. Kaufman, 134 Cal. 391, 66 Pac. 471, 86 Am. St. 283; Crabtree v. Welles, 19 111. 55; Day v. Wilson, 83 Ind. 463, 43 Am. Rep. 76; Duncan v. Baud, 8 Dana (Ky.), 101; Gammon v. Butler, 48 Maine, 344; Plummer v. Bucknam, 55 Me. 105; Coughlin v. Knowlea, 7 Mete. (Mass.) 57, 39 Am. Dec 759; Congdon v. Perry, 13 Gray, 3; Kennis-ton v. Blakie, 121 Mam. 552; McKinney v. Harvie, 38 Minn. 18, 35 N. W. 668, 8 Am. St Rep. 640; Sims v. Hutching, 8 Smed. & M. 328, 47 Am. Dec. 90 (a contrary suggestion in Houston v. Jaudon, 42 Miss. 380, 386, was called absurd and overruled in Washington v. Soria, 73 Miss. 665, 673, 19 So. 485, 55 Am. St. Rep. 555); McDonald v. Lynch, 59 Mo. 350; Perkins v. Allnut, 47 Mont. 13, 130 Pac 1; Lane v. Shackford, 5 N. H. 130; Abbott v. Draper, 4 Denio, 51; Collier v. Coates, 17 Barb. 471; Dowdle v. Camp, 12 Johns. 451; Quinto v. Alexander, 123 N. Y. App. D. 1, 107 N. Y. S. 422; Graham v. Healy, 154 N. Y. App. D. 76, 138 N. Y. S. 611; Syme v. Smith, 92 N. C. 338; Durham 4c Improvement Co. v. Guthrie, 1I6 N. C. 381, 21 S. E. 952; Weller v. Dusky, 51 OkU. 77, 151 Pac 606; Shaw v. Shaw, 6 Vt. 69; Cobb v. Hall, 29 Vt. 510, 70 Am. Deo. 432; Cook v. Griffith, 76 W. Va. 799, 86 S. E. 879, L. R. A. 1916 D. 466. See also Johnson v, Puget Mill Co., 28 Wash. 515, 68 Pac title to personal property under an oral agreement that land should be conveyed in exchange has similarly not been allowed to recover the fair value of the personalty, the defendant being willing to convey the land.12 Recovery for the value of services rendered under an oral agreement within the statute also has been generally denied to a plaintiff in default; 13 but a contrary result has been reached in several jurisdictions. In a leading Massachusetts case,14 it was there said that to allow the oral contract to be set up as matter of defence was in effect to enforce it; and, accordingly, a plaintiff who, owing to his own fault, had failed to perform his side of an enforceable contract, was allowed to recover on principles of quasi-contract for the value of his services. The decision though justly criticized,15 has been followed in Massachusetts 16 and in a few other States.17 Where the local statute provides that noncompliance with the statute renders an agreement void, an additional reason is found for permitting recovery by the defaulting plaintiff, since it is argued that the agreement is void

867; Thomas v. Brown, 1 Q. B. D. 714. A few contrary decisions allow recovery. Nelson v. Shelby Mfg. Co., 96 Ala. 515, 11 So. 695, 38 Am. St. Rep. 116; Scott v. Bush, 26 Mich. 418, 12 Am. Rep. 311; Brandos v. Neustadtl, 13 Wis. 142. See also Brown v. Pollard, 89 Va. 690, 17 S. E. 6. In these decisions last cited the court relies on the fact that the local statute made the oral agreement "void," but this seems immaterial.

12 Galway v. Shields, 66 Mo. 313, 27 Am. Rep. 351; Green v. North Carolina R. Co., 77 N. C. 95; Hoskins v. Mitcheaon, 14 U. C. Q. B, 551. See also Alb's v. Read, 45 N. Y. 142. There might, however, be an acceptance of a specified undivided fraction, if the bargain was for such a fraction.

13Swancey v. Moore, 22 111. 63, 74 Am. Dee. 134 (but see Collins v. Thayer, 74 111. 138); Kriger v. Leppel, 42 Minn. 6, 43 N. W. 484; Galvin v. Prentice, 45 N. Y. 182, 6 Am. Rep. 58 (cf.. Hartwell v. Young, 97 Hun, 472, 22 N. Y. S. 486); Abbott v. Inskip, 29

Ohio St. 59; Mack v. Bragg, 30 Vt. 571.

14 King v. Welcome, 5 Gray, 41.

15 Keener, Quasi -Contracts, 234. See also Woodward, Quast-Contracts, 154.

16Freeman v. Foes, 145 Mass. 361, 14 N. E. 141, 1 Am. St. Rep. 467. Cf. Riley v. Williams, 123 Mass. 506.

17In Bernier v. Cabot, 71 Me. 506, 36 Am. Rep. 343, the court refused to allow the defendant when sued on a quantum meruit to show that the services in question were rendered under an oral contract, a term of which was that the plaintiff should not leave within two years, and that he had done bo. The case does not cite Gammon v. Butler, 48 Me. 344, where it was inconsistently, but with better reason, held that one who had advanced money as part of the price, on an oral contract for the purchase of land could not recover it whan the seller was ready to convey. See also Comes p. Lamson, 16 Conn. 246; Collins v. Thayer, 74 111. 138,142.

for all purposes, and the situation is left as it would be had there been no agreement.18 In Wisconsin the court has gone so far as to hold that a plaintiff who has fully performed may reject counter performance for which he bargained, since that bargain is by the statute void, and recover the value of what he has given.19 The courts which render these decisions, however, lose sight of the fact that an agreement within the Statute of Frauds is not illegal whether void or not; that no contract implied in fact at variance with the oral agreement can be found; and that the only reasonable basis for allowing quasi-contractual recovery is that the plaintiff has not received, and cannot get, what he expected to get as a return for his own performance. If his performance were a gift he would nowhere be allowed to recover pay for it, and to allow a plaintiff who has orally agreed to sell his performance for half its value to recover the full value when he himself is the cause of the breach of the oral agreement, is as objectionable as to allow him to recover the full value when he agreed to perform for nothing.20 It has been pointed out, however, that if one who has partly performed and whose performance is wholly due before that of the other party, is denied relief unless he completes his performance, there may be hardship upon bin) since he will be compelled to go forward with his own performance without thereby gaining an enforceable right to the counter-performance.21 The hardship does not seem very serious since the situation supposed necessarily assumes that if the contract were enforceable its terms are such that the plaintiff would have to perform first relying merely on the acquisition of a right of action to enforce performance on the other side; and even though the contract is „unenforceable the plaintiff if he fully performs will be entitled to recover the value of his performance if the defendant fails to fulfil his promise. The hardship therefore is only the chance of becoming entitled to a right of restitution instead of a right to enforce the defendant's promise. Nevertheless the suggestion which has been made to meet the difficulty 22 seems reasonable, namely, that the plaintiff should be allowed to recover without full performance, if before making default he requests the defendant to join with him in signing a memorandum of the contract, and the latter refuses to do so.

18 Recovery was therefore allowed in Nelson v. Shelby Mfg. Co., 96 Ala. 515, 11 So. 60S, 38 Am. St. Rep. 116 (price paid for land); Scott v. Bush, 26 Mich. 418, 12 Am. Rep. 311 (price paid for land); Brandeis v. Neuatadtl, 13 Wis. 142 (price paid for land); Dra-heiin v. Eviaon, 112 Wis. 27, 87 N. W. 796 (services rendered); Chase v. Hinkley, 126 Wis. 76, 105 N. W. 230, 110 Am. St. Rep. 896 (services rendered).

19Koch v. Williams, 82 Wis. 186, 62 N. W. 267. But see contra, Day v.

Wilson, 83 Ind. 463, 43 Am. Rep. 76; Riley v. Williams, 123 Mass. 506; Galway v. Shields, 66 Mo. 313, 27 Am. Rep. 361.

20 In Minnesota, contracts within the Statute are declared "void" yet the plaintiff in default is denied recovery. McKinney v. Harvie, 38 Minn. 18, 36 N. W. 608, 8 Am. St. Rep. 640; Kriger v. Leppel, 42 Minn. 6, 43 N. W. 484.

21 Woodward, Quasi-Contracts, Sec. 98, p. 166, citing Collier v. Coatee, 17 Barb. 471, 476.

22 Woodwmid, Quasi-Contracte, Sec. 96, p. 156.