§ 123. Courts of equity, also, refuse to extend their aid to rescind a contract, merely because it is verbal, at the suit of one party, where the other party is not in default.4 And a mere violation of the contract, in part, by a vendee who has taken possession of the land and made improvements thereon and paid part of the purchase-money, thus entitling himself to a decree in equity for a specific execution of the contract, will not justify the vendor, even at law, in treating the contract as void, so as to recover for the use and occupation of the land; in such a case his remedy sounds entirely in damages for the violation.1

1 Rhodes v. Storr, 7 Ala. 346; McGowan v. West, 7 Mo. 569.

2 Edelin v. Clarkson, 3 B. Mon. (Ky.) 31, approved in Gillespie v. Battle, 15 Ala. 282. See also Rhodes v. Storr, 7 Ala. 346; and King v. Hanna, 9 B. Mon. (Ky.) 369; Crutchfield v. Donathon, 49 Tex. 691; Schierman v. Beckett, 88 Ind. 52.

3 Gillespie v. Battle, 15 Ala. 276; Barnes v. Wise, 3 T. B. Mon. (Ky.) 167.

4 Barnes v. Wise, 3 T. B. Mon. (Ky.) 167; Rowland v. Garman, 1 J. J. Marsh. (Ky.) 76; Nelson v. Forgey, 4 J. J. Marsh. (Ky.) 569; Manning v. Franklin, 81 Cal. 205.

§ 124. It has been already stated that where all engagements which the statute covers have been performed, an action lies upon the special contract for the enforcement of all remaining engagements, including the payment of the stipulated price for property conveyed or services rendered. On the other hand, where the engagements covered by the statute have not been all performed, and recovery is sought (under such conditions as justify it) of the value of property conveyed or services rendered in pursuance of the contract, such recovery must be upon the implied promise of the defendant to pay for such property or services, as held or enjoyed by him without consideration.2 In such an action, however, evidence of the special contract may be received for purposes other than that of its direct enforcement.

§ 125. Thus, where there was a parol agreement to demise a house for five years, and leases to be executed, under which the party entered and subsequently refused to accept a lease, and the owner brought assumpsit for the use and occupation, and it was objected that the parol agreement was void by the Statute of Frauds, evidence of the agreement was held admissible for the purpose of showing that the defendant went into the occupation of the premises by the permission of the plaintiff, thus establishing the relation of landlord and tenant.3

1 Smith v. Smith, 14 Vt. 440.

2 Gray v. Hill, Ry. & M. 420; Marcy v. Marcy, 9 Allen (Mass.) 8; Thomas v. Dickinson, 14 Barb. (N. Y.) 90; Hollis v. Morris, 2 Harr. (Del.) 3; Hill v. Hooper, 1 Gray (Mass.) 131; Ives v. Gilbert, 1 Root (Conn.) 89; Shute v. Dorr, 5 Wend. (N. Y.) 204; Hambell v. Hamilton, 3 Dana (Ky.) 501; Ray v. Young, 13 Tex. 550; McDowell v. Oyer, 21 Pa. St. 417; Roberts v. Tunnell, 3 T. B. Mon. (Ky.) 247.

3 Little v. Martin, 3 Wend. (N. Y.) 219; Whitney v. Cochran, 1 Scam (111.) 209. See Arnold v. Garst, 10 R. I. 4.

Here the existence of the contract was proved as part of the res gestae, to show in what character the defendant was in possession; not to hold him bound by the terms of the contract.

§ 126. Again, while the plaintiff in an action on the implied promise for the value of property conveyed or services rendered cannot insist upon the value stipulated in the verbal contract itself,1 such stipulation may be evidence to be submitted to the jury,2 and in the absence of other evidence may be decisive.3 The ground upon which such evidence is received at all appears to be that it furnishes an admission by the party making such stipulation as to his contemporaneous judgment of the value of the subject in dispute; the question upon which it is admitted or excluded being, what was the actual value of the services rendered or the property transferred for which the plaintiff seeks compensation, at the time they were so rendered or transferred; not what was their value, even to him, at a different time when the defendant's obligation under the special contract matured; not what was their value at any time to the defendant as manifested by what he had agreed, in the special contract, to do or give for them; - and this, whether the value at the time the plaintiff rendered the services or transferred the property be greater or less than their value to him at the time when the defendant's special promise matured, or greater or less than their value to the defendant as manifested by what he had specially agreed to do or pay for them.1

1 Earl of Falmouth v. Thomas, 1 Cromp. & M. 89; Ellet v. Paxson, 2 Watts & S. (Pa.) 418; Erben p. Lorillard, 19 N. Y. 299, explaining King v. Brown, 2 Hill (N. Y.) 485; Montague v. Garnett, 3 Bush (Ky.) 297; Sands v. Arthur, 84 Pa. St. 479. But see dictum of Chapman, J., in Basford v. Pearson, 9 Allen (Mass.) 392.

2 Ham v. Goodrich, 37 N. H. 185; Emery v. Smith, 46 N. H. 151; Jennings v. McComb, 112 Pa. St. 518.

3 Nones v. Homer, 2 Hilt (N. Y.) 116. In McElroy v. Ludlum, 32 N. J. Eq. 828, the Court of Appeals of New Jersey have repudiated the whole doctrine; holding, in a case where, for services which had been rendered, the agreement was to pay a share of the profits to be earned by a business concern during a term outrunning one year, that even to receive evidence of the amount of such profits as bearing on the question of the quantum meruit for the services, was a violation of the policy of the Statute of Frauds, and rejecting such evidence accordingly. The opinion reviews the authorities upon the subject and discusses them fully and ably.

§ 127. In the case of Kidder v. Hunt, in Massachusetts, a dictum in an earlier case in the same State2 having been relied upon, to the effect that where an English court of equity would decree specific performance, the common-law courts which had no equity jurisdiction (as was then the case in Massachusetts) would give damages, it was overruled, and the court said: " There are no doubt cases proper for a court of chancery, such as those which relate to the execution of trusts, where the common law will give a remedy by an action for damages; and perhaps in the case of a parol contract respecting land, where the party has been put to expense as to his part of the contract, under circumstances which would amount to fraud by the other party, case might lie for damages for the fraud;" but the present action being brought upon the contract itself, it was considered that it would not lie.3