In case of a contract not affected by the statute of frauds, and not affected either by defects in offer and acceptance or by peculiarities-in the status of the parties thereto, the party who has broken the contract and is in default cannot, as a general rule, recover a reasonable compensation for what he has done under the contract.1 The question then to be considered is whether the statute of frauds affects the operation of this general rule. If A, the party who has furnished property or rendered services to B under an oral contract within the statute of frauds seeks to avoid the contract and recover for his services or property, a question is presented on which there is a conflict of authority. In some jurisdictions it is held that he cannot recover since he is basing his cause of action upon his own refusal to carry out his contract.2 Thus a vendee of realty under an oral contract, who refuses to perform, cannot recover the purchase money paid in by himself,3 even in equity,4 nor can he recover for improvements on such realty.5 A vendor who refuses performance cannot recover for use and occupation,6 and en employee under an oral contract not to be performed within the year cannot abandon the employment with cause and recover on a quantum meruit.7

20 Gay v. Mooney, 67 N. J. L. 27; 50 Atl. 596; affirmed in 67 N. J. L. 687; 52 Atl. 1131, on reasons given in opinion below.

21Deischer v. Stein, 34 Kan. 39; 7 Pac. 608; Findley v. Wilson, 3 Litt. (Ky.) 390; 14 Am. Dec. 72; Hannibal, etc., R. R. v. Shortridge, 86 Mo. 662; Smith v. Smith, 28 N. J. L. 208; 78 Am. Dec. 49; Harris v. Frink. 49 N. Y. 24; 10 Am. Rep. 318; Pass v. Brooks, 125 N. C. 129; 34 S. E. 228.

22 King v. Thompson, 9 Pet. (U.

S.) 204; McNamee v. Withers, 37 Md. 171; Herring v. Pollard, 4 Humph. (Tenn.) 362; 40 Am. Dec. 653. Even where such compensation could not be had at law. Mathews v. Davis, 6 Humph. (Tenn.) 324.

23 Luton v. Badham, 127 N. C. 96; 80 Am. St. Rep. 783; 53 L. R. A. 337; 37 S. E. 143; Thouvenin v. Lea, 26 Tex. 612.

24 Thomas v. McManus (Ky.), 64 S. W. 446.

1 See Sec. 1603.

In other cases the party refusing performance has been allowed to recover a reasonable compensation.8 Thus, one who

2 Clark v. Terry, 25 Conn. 395; Day v. Wilson, 83 Ind. 463; Gray v. Gray, 2 J. J. Mar. (Ky.) 21; Bacon v. Parker, 137 Mass. 309; Kriger v. Leppel, 42 Minn. 6; 43 N. W. 484; Galvin v. Prentice, 45 N. Y. 162; 6 Am. Rep. 58; Durham, etc., Co. v. Guthrie, 116 N. C. 381; 21 S. E. 952; Mack v. Bragg, 30 Vt. 571.

3 Thomas v. Brown, 1 Q. B. D. 714; York v. Washburn, 118 Fed. 316; Venable v. Brown, 31 Ark. 564; Crabtree v. Welles, 19 111. 55; Day v. Wilson, 83 Ind. 463; 43 Am. Rep. 76; Duncan v. Baird, 8 Dana (Ky.) 101; 33 Am. Dec. 479; Gray v. Gray, 2 J. J. Mar. (Ky.) 21; Plummer v. Bucknam, 55 Me. 105; Riley v. Williams, 123 Mass. 506; Kenniston v. Blakie, 121 Mass. 552; Coughlin v. Knowles, 7 Metc. (Mass.) 57; 39 Am. Dec. 759; McKinney v. Har-vie, 38 Minn. 18; 8 Am. St. Rep. 640; 35 X. W. 668; Sennett v. Sheehan, 27 Minn. 328; 7 N. W. 266; Lane v. Shackford. 5 X. H. 130; Long v. Hartwell. 34 X. J. L. 116; Durham, etc.. Co. v. Guthrie. 116 X. C. 381; 21 S. E. 952; Syme v. Smith, 92 X. C 338; Cobb v.

Hall, 29 Vt. 510; 70 Am. Dec. 432; Johnson v. Mill Co., 28 Wash. 515; 68 Pac. 867.

4Foust v. Shoffner, Phil. Eq. (N. C.) 242.

5 Young v. Pate, 3 J. J. Mar. (Ky.) 100; Luckett v. Williamson, 37 Mo. 388.

6 Greton v. Smith, 33 X. Y. 245.

7 Swazey v. Moore, 22 111. 63; 74 Am. Dec. 134; Kriger v. Leppel, 42 Minn. 6; 43 X. W. 484; Galvin v. Prentice, 45 X. Y. 162; 6 Am. Rep. 58; Abbott v. Inskip. 29 O. S. 59; Mack v. Bragg, 30 Vt. 571; Phil-brook v. Belknap, 6 Vt. 383. See as to other contracts not to be performed within the year Clark v. Terry, 25 Con. 395; Gottschalk v. Witter. 25 O. S. 76.

8 Swift v. Swift. 46 Cal. 266; Davenport v. Gentry. 9 B. Mon. (Ky.) 427; King v. Welcome, 5 Gray (Mass.) 41; Scott v. Bush, 26 Mich. 418; 12 Am. Rep. 311; s. c, 29 Mich. 523; Crawford v. Parsons. 18 X. H. 293; Mendelsohn v. Banov, 57 S. C. 147; 35 S. E. 499; Winters v. Elliott, 1 Lea (Tenn.) 676. "The principle (that no recovery can be had if the other party is willing to perform) has never prevailed in rendered services upon a contract not to be performed within the year,9 or has paid money under a contract for the purchase of realty,10 has been allowed to recover a reasonable compensation therefor, or if he has made improvements on realty benefitting the vendor he has been allowed to recover.11 However, if services have been rendered under such a contract payable in full each week, and such payments have been made up to the time of discharge, no recovery can be had for a reasonable compensation therefor.12 Three separate grounds have been suggested for such holding: (1) that such contract is void,13 (2) that such contract is voidable at the election of either party,14 and (3) that to allow the oral contract to be used as a defense in an action for reasonable compensation would be to enforce indirectly a contract that could not be enforced directly.15 In Alabama the question as to the right of recovery seems to turn on the question of whether there has been part performance within the meaning of the statute, the right of recovery existing in all cases, irrespective of the question of who breaks the contract, until such part performance occurs.16 this state." Nelson v. Improvement Co., 96 Ala. 515, 526; 38 Am. St. Rep. 116; 11 So. 695.

9 Comes v. Lanios, 16 Conn. 246; Benier v. Mfg. Co., 71 Me. 506; 36 Am. Rep. 343; King v. Welcome, 5 Gray (Mass.) 41; Freeman v. Foss, 145 Mass. 361; 1 Am. St. Rep. 467; 14 X. E. 141.

10 Nelson v. Improvement Co., 96 Ala. 515; 38 Am. St. Rep. 116; 11 So. 695; Allen v. Booker. 2 Stew. (Ala.) 21; 19 Am. Dec. 33; Tucker v. Grover, 60 Wis. 233; 19 N. W. 92 (citing as showing the right of one paying money under an oral contract to recover the same, though the other party is willing to perform. Clark v. Davidson, 53 Wis. 317; 10 N. W. 384; North-Western, etc., Co. v. Shaw. 37 Wis. 655; 19 Am. Rep. 781; Hooker v. Knab, 26 Wis. 511; Thomas v. Sowards, 25

Wis. 631; Brandeis v. Neustadtl, 13 Wis. 142).

11 Masson v. Swan, 6 Heisk. (Tenn.) 450.

12 Cohen v. Stein, 61 Wis. 508; 21 N. W. 514.

13 Tucker v. Grover, 60 Wis. 233; 19 N. W. 92. "If he has the unqualified right to repudiate the contract then there is no contract, and no right upon which he can retain the money." Flinn v. Barber, 64 Ala. 193, 198; quoted in Nelson v. Improvement Co., 96 Ala. 515, 525; 38 Am. St. Rep. 116; 11 So. 695.

14Winters v. Elliott, 1 Lea (Tenn.) 676.

15 King v. Welcome, 5 Gray (Mass.) 41.

16 Nelson v. Improvement Co., 96 Ala. 515; 38 Am. St. Rep. 116; 11 So. 695.