While the Statute of Frauds is in some jurisdictions regarded as completely nullifying contracts not conforming to its requirements (ante, Sec. 93), it is nowhere held that such contracts are illegal - that is to say, that the making or performance of such a contract is an act in violation of law.2 There appears to be no reason of policy, therefore, for denying to a party thereto, in a proper case, the aid of the court in obtaining quasi contractual relief, or the right to establish the justice of his quasi contractual demand by proving the terms of the unenforceable agreement. True, the evidence of the agreement, in such a case, must be oral; but since the evidence is for the purpose of proving, not a contract as such, but a transaction resulting in an unjust benefit to the defendant, its introduction would seem not to contravene the statute.3
1 Miller v. Tobie, 1860, 41 N. H. 84, (purchaser); Yates v. Bachley, 1873, 33 Wis. 185.
2 See Abbott v. Draper, 1847, 4 Den. (N. Y.) 51; Collier v. Coates, 1854, 17 Barb. (N. Y.) 471; Hawley v. Moody, 1852, 24 Vt. 603.
3 Gay 9. Mooney, 1901, 67 N. J. L. 27, 28 ; 50 Atl. 596. Action to recover compensation for board and lodging of plaintiff's wife's uncle who resided with plaintiff's family. Dixon, J.: "In order to rebut a presumption that the service was rendered and received as a gratuity, the plaintiff put in evidence tending to show an understanding between himself and the deceased that the latter would devise a certain dwelling to the plaintiff's children in return for what he should receive as a member of the family. For such a purpose this evidence was plainly legitimate. . . . Although the bargain between the plaintiff and the intestate contemplated payment to be made to the plaintiff's children, and not directly to himself, yet, as that bargain did not take the form of an actionable contract, it falls out of view as a ground of legal remedy, and appears only to give color to the conduct of the parties in furnishing and accepting the service rendered. It affords the means of determining that the service was not a gift, but a sale, and out of that determination the law deduces a right in him who sold the service to be paid its value by him who bought it."
Accord: Pulbrook v. Lawes, 1876, 1 Q. B. D. 284; Frazer v. Howe, 1883, 106 111. 563; Kettry v. Thumma, 1894, 9 Ind. App. 498; 36 N. E.