In the jurisdictions in which non-compliance with the requirements of the Statute of Frauds is held to invalidate the contract instead of making it unenforceable, cases permitting a plaintiff in default to recover the value of the benefit conferred by his part performance are relatively more frequent:1

Nelson v. Shelby Mfg. Co., 1892, 96 Ala.515; 11 So. 695; 38 Am. St. Rep. 116: Action by plaintiff in default under oral contract to buy land to recover payments made. Coleman, J. (p. 526): "We find nothing in the earlier or present statutes of frauds which supports the conclusion that a contract not enforceable against a vendor as provided in the former, or which is declared void as to him by the present statute, because there is no sufficient written note or memorandum of the agreement to comply with its mandates, subscribed by him, and which affords the vendor complete protection against his vendee, may, by his election or willingness to perform, avoid the statute, and convert a contract it declares void into a valid agreement, enforceable against a vendee, who has subscribed no note or memorandum of the agreement, and has done no more than pay a part of the purchase money. In such case, neither party is bound, and the contract is void by the very terms of the statute itself. A contract void under the statute of frauds is void for all purposes."

1 Nelson v. Shelby Mfg. Co., 1892, 96 Ala. 515; 11 So. 695; 38 Am. St. Rep. 116; Scott v. Bush, 1873, 26 Mich. 418; 12 Am. Rep. 311; Brandeis v. Neustadtl, 1860, 13 Wis. 142; Thomas v. Sowards, 1870, 25 Wis. 631; Salb v. Campbell, 1886, 65 Wis. 405; 27 N. W. 45.

Professor Keener contends that even though the contract is void, a recovery by a plaintiff in default is unjust:1

"If it be assumed that the statute, while not rendering the contract illegal, does render it void, still it would seem that the plaintiff should not be allowed to recover against a defendant not in default. ... In such a case the defendant seeks to defeat a recovery by the plaintiff, not because of a contract existing between them, but because that which was given to him, it was understood, should not be paid for, except in a certain event, and, therefore, to allow a recovery would be to defeat the intention of the parties as expressed between them."

The force of Professor Keener's argument cannot be denied. But his view of this case is open to the same criticism as was urged against his view of the case of the contract unenforceable but not void - that it practically compels the plaintiff to continue the performance of an agreement he cannot enforce. A rule which meets this objection has been suggested {ante, Sec. 98). It should be applied, it is believed, to the case under discussion as well as to that arising under a statute which affects not the validity of a contract but only its enforceability.