A special kind of quasi-contractual relief is allowed to the purchaser of realty who has made improvements thereon in reliance on an unenforceable contract, where specific performance is not permitted either because the property has been acquired by a bona fide purchaser or because the jurisdiction in question does not regard such part performance as has been rendered a sufficient reason for specifically enforcing an oral contract. Under these circumstances courts of equity allow recovery of the value of the improvements.4 This right is said to be enforceable only in equity.5
3In Quirk v. Bank of Commerce, 244 Fed. 682,167 C. C. A. 130, Mack, J., speaking of a promise to leave money by will in return for services to be rendered during the promisor's life, said: "Although the evidence as to the oral agreement is admissible to prove that the plaintiff's services were not given gratuitously, without expectation of reward, the promised reward, affords no real measure of the plaintiff's quasi-contractual recovery either in Tennessee or Wisconsin. Goodloe v. Goodloe, 116 Term. 252, 92 S. W. 767, 6 L. R. A. (N. S.) 703. In re Sheldon's Estate, 120 Wis. 26, 97 N. W. 524. The plaintiff's right must be measured by the reasonable value of the consideration given by her to him. If the services to be rendered had been definitely fixed in amount when the contract was made, the testimony as to the value of the bulk of the estate would be admissible to show the value that the parties placed on the services that were to be given; but where, as here, the extent of the services to be rendered is entirely uncertain and dependent upon the length of the promisor's life, such evidence is of no probative force in ascertaining their reasonable value."
4 McNunee v. Withers, 37 Md. 171; Ford v. Stroud, 150 N. C. 362, 64 B. E. 1; Welsh v. Welsh, 5 Ohio, 425; Holthouse v. Rynd, 155 Pa. 43, 25 Atl. 760; Treece v. Treece, 5 Lea, 221; Ernst v. Schmidt, 66 Wash. 452, 119 Pac. 828.
5Orear v. Botts, 3 B. Mon. 360; Patterson p. Yeaton, 47 Me. 308; Welsh v. Welsh, 6 Ohio, 425.
Sec. 538. The statute as a defence to recovery by a plaintiff in default. Though no action can be brought upon a contract within the statute, and though "it is also clear that neither party can be held liable upon it indirectly in any action, which necessitates the admission of the existence of the contract," 6 it does not follow that a contract within the statute may not be admitted as evidence to establish a defence. If suit is brought on an alleged contract, for instance, the conduct of the parties might indicate an assent implied in fact to such a contract, were it not that an express oral agreement between them indicated a different arrangement. Even though the local Statute of Frauds declares the oral agreement void, evidence of it should be admissible in order to negative the implication of fact which might otherwise arise from the circumstances. The oral agreement should also be provable in order to prevent the imposition of any quasi-contractual liability at variance with the express agreement, as fully as if that agreement had been in writing. Under some circumstances a plaintiff in default is allowed to recover on a quantum meruit or quantum valebat in some of the United States even though the express contract was written, or enforceable without a writing.7 In such jurisdictions if the express agreement is oral and unenforceable because of the Statute of Frauds, proof of it clearly could not prevent quasi-contractual liability under circumstances where such liability would be imposed if the express agreement had been enforceable. In England and in some of the United States, however, a plaintiff in default under an enforceable contract can never recover quasi-contractually, and everywhere there are limitations on the quasi-contractual right of such a plaintiff.8 Wherever in a given jurisdiction the express agreement is unenforceable, the limitations on the quasi-contractual rights of a plaintiff in default thereunder should be the same as if the express contract were enforceable.
In Waters v. Cline, 121 Ky. 611, 616, 618, 86 S. W. 209, 750, the court said:
"The rule in Kentucky is that part performance of a contract will not take it out of the statute. But the court has also uniformly held that the statute is a shield, not a sword, and that where tie party has received the consideration of the contract the court will not allow him to rely upon the statute and keep the consideration. In applying this rule in cases where the party who has performed the contract cannot be restored to the situation in which he was before the contract was made, and it is impossible to estimate by any pecuniary standard the value of what the other party has received, this court has adopted the rule that in such cases the contract itself is the best evidence of the value of what has been received; and while it will not enforce specific performance by decreeing a conveyance of the land, it will adjudge compensation for what has been received by the defendant under the contract, measured by the consideration which, by the contract, he agreed to as the value of what he received." "For authorities in other States, see the following: Sutton v. Hayden, 62 Mo. 101; Sharkey v. Mc-Dermott, 91 Mo. 647, 4 S. W. 107, 60 Am. St. Rep. 270; Owens v. McNally, 113 Cal. 444, 450, 45 Pac. 710, 33 L. R. A. 369; Brinton v. Van Cott,
8 Utah, 480, 33 Pac. 218; Quinn v. Quinn, 5 S. D. 328, 335, 58 N. W. 80S, 49 Am. St. Rep. 875; Rhodes v. Rhodes, 3 Sandf. Ch. (N. Y.) 279; Parsell v. Stryker, 41 N. Y. 480; Johnson v. Hubbetl, 3 Stockt. Ch. 332 (N. J.) 66 Am. Dec. 773; Wright v. Wright,
99 Mich. 170, 68 N. W. 54, 23 L. R. A. 196, and Kofka v. Roeicky, 41 Neb. 328, 59 N. W. 788, 25 L. R. A. 207, 43 Am. St. Rep. 685."
6 Brett, L. J., in Britain v. Roastter, 11 Q. B. D. 123,128.
Allowing proof of the contract for such purposes is not enforcing it, but is merely refusing to impose liability on a defendant under circumstances where it is unjust to do so. The basis of quasi-contractual recovery is that the defendant has received something for which in equity and good conscience he ought to pay a fair value; but if the parties have made their own arrangement as to what should be given by the plaintiff, and what should be paid for it, and the defendant though not obliged to perform his agreement is willing to do so, there is no occasion for the court to invoke the principles of quasi-contract to any greater extent than if the contract had been enforceable. A promise to give is not only unenforceable, but void; yet if a promise to give is afterwards executed by the delivery of the promised property, no implication of fact, nor imposition of a legal obligation, requires the donee to pay the value of the property. A promise within the Statute of Frauds should be dealt with in the same way; and would be bo dealt with in many if not most jurisdictions. Brett, L. J., in the English Court of Appeal has said: 9 "It seems to me impossible that a new contract can be implied from the doing of acts which were clearly done in performance of the first contract only [which was within the statute] and to infer from them a fresh contract would be to draw an inference contrary to the facte."10