When it is the plaintiff who makes default under the unenforceable contract, the defendant being willing to perform, the justice of a recovery in quasi contract by the plaintiff is not so clear. By the weight of authority it is held that the conduct of the plaintiff in refusing to proceed under the contract justifies the retention by the defendant of the benefit of the plaintiff's part performance:

1 Crawford v. Jones, 1875, 54 Ala. 459; Donohue v. Chicago Bank Note Co., 1890, 37 111. App. 552; Stover v. Cadwallader, 1882, 2 Penny. (Pa.) 117. In Morehead v. Watkyns, 1844, 5 B. Mon. (44 Ky.) 228, 231, it was suggested that upon principle the lessor should recover the value of the estate whether or not the lessee actually remained in occupation. This would be purely quasi contractual.

2 Doe v. Bell, 1793, 5 Term R. 471; King v. Woodruff, 1854, 23 Conn. 56; 60 Am. Dec. 625; Donohue v. Chicago Bank Note Co., 1890, 37 111. App. 552; Evans v. Wonona Lumber Co., 1883, 30 Minn. 515; 16 N. W. 404; Talamo v. Spitzmiller, 1890, 120 N. Y. 37; 23 N. E. 980; 8 L. R. A. 221; 17 Am. St. Rep. 607. See Dobbs v. Atlas Elevator Co., 1910, 25 S. D. 177; 126 N. W. 250, 252.

3 Smallwood v. Sheppards, [1895] 2 Q. B. 627; Donohue v. Chicago Bank Note Co., 1890, 37 111. App. 552; Laughran v. Smith, 1878, 75 N. Y. 205; Talamo v. Spitzmiller, 1890, 120 N. Y. 37; 23 N. E. 980;

8 L. R. A. 221; 17 Am. St. Rep. 607.

4 In some cases it is expressly declared that the statute will not prevent the enforcement of an oral lease in so far as it has been executed. See Walsh v. Colclough, 1893, 56 Fed. 778; 6 C. C. A. 114;

9 U. S. App. 537; Robb v. San Antonio St. R., 1891, 82 Tex. 392; 18 S. W. 707.

Thomas v. Brown, 1876, 1 Q. B. D. 714: Action to recover a deposit made by the vendee under a contract to buy a leasehold. The memorandum was claimed by the plaintiff to be insufficient to satisfy the Statute of Frauds. Mellor, J. (p. 722): "Now, is there anything unconscientious in the defendant keeping the money? I can see nothing. The breaking off of the agreement was not in any sense the fault of the vendor. He was always ready and willing to complete the purchase and execute a conveyance, but the vendee chooses to set up this question about the Statute of Frauds, and to say, 'Although I can have the contract performed if I please, I repudiate it.' Under these circumstances, I think it would be quite monstrous if the plaintiff could recover, and I am glad to think that the authorities are all opposed to her claim."

Accordingly neither money paid,1 nor the value of services rendered 2 or of property delivered 3 in part performance of the contract may be recovered. Analogously, a purchaser of land under an oral contract is not liable for use and occupation to a vendor who refuses to convey.4

1 York v. Washburn, 1902, 118 Fed. 316 (C. C. Minn.); Crabtree v. Welles, 1857, 19 111. 55, (but see Collins v. Thayer, 1874, 74 111. 138); Gammon v. Butler, 1861, 48 Me. 344; Coughlin v. Knowles, 1843, 7 Metc. (Mass.) 57; 39 Am. Dee. 759, (compare King v. Welcome, 1857, 5 Gray 41); McKinney v. Harvie, 1887, 38 Minn. 18; 35 N. W. 668; 8 Am. St. Rep. 640; Sims v. Hutchins, 1847, 8 Smed. & M. (16 Miss.) 328, (but see Hairston v. Jaudon, 1869, 42 Miss. 380, 386); Abbott v. Draper, 1847, 4 Denio (N. Y.) 51; Collier v. Coates, 1854, 17 Barb. (N. Y. Sup. Ct.) 471; Hoskins v. Mitcheson, 1857, 14 U. C. Q. B. (Ont.) 551; Cobb v. Hall, 1857, 29 Vt. 510; Johnsons Puget Mill Co., 1902, 28 Wash. 515; 68 Pac. 867.

2 Swanzey v. Moore, 1859, 22 111. 63 ; 74 Am. Dec. 134, (but see Collins v. Thayer, 1874, 74 111. 138); Congdon p. Perry, 1859, 13 Gray (Mass.) 3, (compare King v. Welcome, 1857, 5 Gray 41); Kriger v. Leppel, 1889, 42 Minn. 6; 43 N. W. 484; Galvin v. Prentice, 1871, 45 N. Y. 162; 6 Am. Rep. 58; Abbott v. Inskip, 1875, 29 Oh. St. 59; Shaw v. Shaw, 1834, 6 Vt. 69; Mack v. Bragg, 1858, 30 Vt. 571.

3 Venable v. Brown, 1876, 31 Ark. 564; Duncan v. Baird, 1839, 8 Dana (38 Ky.) 101; Lane v. Shackford, 1830, 5 N. H. 130; Dowdle v. Camp, 1815, 12 Johns. (N. Y.) 451.

4 Bell v. Ellis, 1832, 1 Stew. & P. (Ala.) 294; Brown v. Randolph, 1901, 26 Tex. Civ. App. 66; 62 S. W. 981. See Lucas 0. McGuire, 1906, 29 Ky. Law Rep. 1068; 96 S. W. 867.

There are a few cases, even in jurisdictions where a failure to comply with the requirements of the statute does not completely nullify the contract, which require the defendant to make restitution notwithstanding the plaintiff's default:

King v. Welcome, 1857, 5 Gray (Mass.) 41: Action on a quantum meruit for work done under an oral contract not to be performed within a year. Plaintiff made default. Thomas, J. (p. 42): "Upon the reason of the thing, and looking at the object and purpose of the statute, the result is clear. So far as it concerns the prevention of fraud and perjury, the same objection lies to the parol contract, whether used for the support of, or in defense to an action. The gist of the matter is, that, in a court of law, and upon important interests, the party shall not avail himself of a contract resting in words only, as to which the memories of men are so imperfect, and the temptations to fraud and perjury so great. . . .

"Looking at the mere letter of the statute, the suggestion is obvious, that no action is brought upon the contract. But the defendant seeks to ' charge the plaintiff therewith,' to establish it by proof, to enforce it in a court of law, and to avail himself of its provisions. And if the defense succeeds, the plaintiff is in effect charged with and made to suffer for the breach of a contract which he could not enforce, and which could not be enforced against him." 1

The case of King v. Welcome, just quoted, is severely criticized by Professor Keener,2 whose principal arguments against it may be summarized as follows: First, that to refuse a recovery would not be "to charge" the plaintiff with the contract, because the phrase "to charge therewith" means merely to hold liable for a breach of the contract. Second, that the statute being intended only to afford a defense when one is sued for a breach of contract, it should be used as a shield only, and not as a sword for the enforcement of a demand which would otherwise be refused. Third, that the case leads, in Massachusetts, to the queer result that one who performs a contract within the statute can recover only according to the terms of the contract,1 while one who refuses to perform can recover the value of his partial performance irrespective of the contract.2

1 Accord: Comes v. Lamson, 1844, 16 Conn. 246, (services; contract not to be performed within one year); Bently v. Smith, 1907,3 Ga. App. 242; 59 S. E. 720, (services; contract not to be performed within one year) ; Bernier v. Cabot Mfg. Co., 1880, 71 Me. 506; 36 Am. Rep. 343, (services; contract not to be performed within one year); Freeman v. Foss, 1887, 145 Mass. 361; 14 N. E. 141; 1 Am. St. Rep. 467, (services; contract not to be performed within one year). And see McGartland v. Steward, 1860, 2 Houst. (Del.) 277, (services; contract not to be performed within one year); Collins v. Thayer, 1874, 74 111. 138, (contract for sale of land).

2 "Quasi-Contracts," pp. 234-8.

The view supported by Professor Keener and by the weight of judicial authority, however, is likewise open to objection, in that it denies to one who discovers the unenforceability of his contract after part performance, and upon such discovery is willing to reduce it to writing, the right to compel the other party to the contract either to make the contract enforceable by reducing it to writing or to restore the value of the benefit already received through part performance. This hardship has been recognized. In Collier v. Coates,3 the court said:

"Cases of great hardship are suggested as a reason for the adoption of the rule contended for by the plaintiff's counsel. One of which is, that otherwise the purchaser under such a contract might go on making payments until the last; and although satisfied his bargain is not an advantageous one, yet bound to make his payments or lose what he has paid, while the other party all this time is at perfect liberty to repudiate the arrangement, and may do so at the last moment, to the serious injury of the purchaser."

1 Riley v. Williams, 1878, 123 Mass. 506. See post, Sec. 100.

2 The case also seems inconsistent with Coughlin v. Knowles, 1843, 7 Metc. (Mass.) 57; 39 Am. Dec. 759, holding that money paid upon a parol contract for the sale of land cannot be recovered if the vendor is willing to perform, and with Congdon v. Perry, 1859, 13 Gray (Mass.) 3, holding that the value of services rendered under a parol contract for the sale of land cannot be recovered if the vendor is willing to perform. The court attempts to distinguish the former case.

3 1854, 17 Barb. (N. Y.) 471, 475.

In other words, while by King v. Welcome a dishonest plaintiff is afforded a quasi contractual remedy against an honest defendant, by the opposite view an honest plaintiff is refused such a remedy against a dishonest defendant.

Both evils, it is believed, may be avoided by permitting the plaintiff in default to recover if it appears that before default he requested the defendant to join him in signing such a written memorandum as would comply with the requirements of the statute, and that the defendant refused or failed within a reasonable time so to do. Such a rule would amply protect the defendant and at the same time would save the plaintiff from the hardship of continuing the performance of a contract with the knowledge that while he can recover the value of his own performance, if he performs in full, he cannot specifically enforce the contract or recover compensatory damages for its breach.