1 See Keener, "Quasi-Contracts," p. 313 n.
2 See McElroy v. Ludlum, 1880, 32 N. J. Eq. 828, 837, in which Depue, J., said: "The policy of the statute is to prevent frauds which may be accomplished by setting up contracts of the interdicted class, by parol testimony. That policy is infringed upon equally, whether the contract be used for the purpose of influencing the amount of the recovery, or be made the foundation of the action." Also, Sutton v. Rowley, 1880, 44 Mich. 112, 113; 6 N. W. 216; in which Campbell, J., said: "There being nothing in the record to indicate that the agreement differs from any other parol agreement concerning lands, it was void and cannot be considered in measuring the damages or for any other purpose."
Care must be exercised, however, in using a rate of compensation fixed in anticipation of full performance, for the purpose of estimating the value of part performance. Not infrequently the several parts or units of an undertaking are of unequal value, and the contract rate is evidence, not of the value of each unit, but of the average value of all. This is nicely illustrated in the New York case of Galvin v. Prentice,2 where the plaintiff sought to recover for services rendered under an oral contract to pay him certain weekly wages for three years. The trial court charged the jury that the contract, although void, might be considered prima facie evidence of the value of the services, but the Court of Appeals, after pointing out that it appeared that the plaintiff was ignorant of the business when he entered upon the performance of the contract, said: "It cannot be supposed that his work was of the same value during the prior part of the term of his employment, as it would be during the latter part, when his proficiency must materially have increased. The price agreed upon for three years, was not, therefore, competent evidence of the value of the services during the first and second years."
1 Scarisbrick v. Parkinson, 1869, 20 L. T. 175; Clark v. Terry, 1856, 25 Conn. 395; Giles v. McEwan, 1896, 11 Manitoba 150; Whipple v. Parker, 1874, 29 Mich. 369: Moore v. Capewell Horse-Nail Co., 1889, 76 Mich. 606; 43 N. W. 644. And see Galvin v. Prentice, 1871, 45 N. Y. 162 ; 6 Am. Rep. 58. But see, contra, Sutton v. Rowley, 1880, 44 Mich. 112; 6N.W. 216; Emery v. Smith, 1865, 46 N. H. 151; Erben V. Lorillard, 1859, 19 N. Y. 299, 302. In Clark p. Terry, supra, Hinman, J., said (p. 401): "In respect to the question whether wages have been earned,which ought to be paid for, and if so to what extent or amount, and when the payment ought to be made, it appears to us that all the circumstances under which they are claimed to have been earned, including the contract under which the service was performed, although it may be one that cannot be enforced by any action directly upon it, may and ought to be considered."
2 1871, 45 N. Y. 162, 164; 6 Am. Rep. 58.
Another illustration of the same point is afforded by the Massachusetts case of Williams v. Bemis.1 The plaintiff was to cultivate the defendant's land for two years for a share of the crops, but at the end of the first year the defendant paid to the plaintiff his share of that year's crop and refused to let him cultivate the land for the second year. Upon showing that, as was understood and anticipated, the work and materials furnished by the plaintiff during the first year were of greater value than the plaintiff's share of that year's crops and inured to the benefit of the crop for the second year, the plaintiff was permitted to recover the value of such work and materials in excess of the amount already received by him.
Sec. 105. Same : May value of thing promised by defendant be proved ? - If the defendant promises to pay a certain sum of money for the plaintiff's performance, the terms of the promise may be shown, as has been seen (ante, Sec. 104), as an admission of the value of the plaintiff's performance. If the defendant's promise is not to pay a certain sum of money, but to transfer property or render services, may the value of such property or services be shown ? In the case of a contract for the exchange of the plaintiff's land for the defendant's, testimony as to the value of the defendant's land has been held admissible, as constituting, together with the contract, a "practical admission" that the property conveyed by the plaintiff was worth that amount.2 But in the case of services rendered by the plaintiff in consideration of a promise to convey land or deliver goods, the weight of authority is that the value of the property may not be shown.3 Where it appears that at the time the contract was made the extent of the services to be rendered was speculative - as, for example, where one was to serve another until the latter's death - this ruling is unquestionably sound. In such circumstances the promise of the defendant involves no admission of the value of the plaintiff's services. But where it appears that the extent of the services to be rendered was known when the contract was entered into, the propriety of rejecting such evidence may be doubted. The contract is certainly an admission that the plaintiff's services were worth the defendant's property, and testimony as to the value of the defendant's property is essential to the interpretation of that admission in terms of money.
1 1871, 108 Mass. 91; 11 Am. Rep. 318.
2 Bassett v. Bassett, 1867, 55 Me. 127.
3 Fuller v. Reed, 1869, 38 Cal. 99; Hillebrands v. Nibbelink, 1879, 40 Mich. 646; Ham. v. Goodrich, 1858, 37 N. H. 185; Erben p. Loril-lard, 1859, 19 N. Y. 299, (disapproving dictum in King v. Brown, 1842, 2 Hill (N. Y.) 485); Hertzog v. Hertzog's Admr., 1859, 34 Pa. St. 418, (overruling earlier cases); Ewing v. Thompson, 1870, 66 Pa. St. 382. But see Bonnon's Estate v. Urton, 1851, 3 G. Greene (la.) 228; Carter v. Brown, 1871, 3 S. C. 298.
Where it appears that at the time the contract was made the thing promised by the defendant was of unknown value - as where he promised a percentage of the profits that might be made in a business - testimony as to its value, as subsequently ascertained, may properly be excluded.1 In such in that where the extent of the services to be rendered by the plaintiff was unknown, it cannot be said that the contract contains any admission as to the value of the plaintiff's performance.