
    John Graham, Appellant, v. Catherine Graham, Respondent.
    Third Department,
    November 10, 1909.
    Statute of Frauds — oral agreement to purchase lands and convey to another in consideration of improvements made thereon—recovery on implied contract—pleading — forms of action abolished — contract — breach by promisor — when further performance by promisee unnecessary — offset — nonsuit.
    Although an oral agreement whereby the defendant agreed to purchase certain real estate and convey the same to the plaintiff’s wife in consideration of repairs to be made on the property by the plaintiff, etc., is void and unenforcible by the beneficiary in that it is not in writing, the promisee having actually repaired the premises after their purchase by the promisor can recover the value thereof on an implied contract to repay. Such implied promise to repay is raised, for the court will not allow the Statute of Frauds to be made an instrument of fraud.
    
      Since the abolition of the various forms of action by the Code, a plaintiff may simply state the facts upon which he relies and is entitled to the relief those facts authorize. His complaint cannot be challenged because it is not in any particular form.
    Thus, the complaint aforesaid cannot be challenged on the ground that it is not upon common counts, as was formerly required.
    Where the defendant absolutely refused to perform the paroi agreement without basing the refusal upon a failure of the plaintiff to pay certain taxes as agreed, the plaintiff was not bound to tender further performance but could sue for the money already expended.
    
      It seems, that the fair rental value of the premises while occupied by the plaintiff should be offset against his claim.
    Where the plaintiff’s failure to prove the fair rental value of the premises was not faised on the motion for a nonsuit, such failure of proof was not ground for a dismissal of the complaint.
    Appeal by the plaintiff, John Graham, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 29tli day of January, 1909, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Albany Trial Term.
    
      Henry J. Crawford, for the appellant.
    
      George A. Reilly, for the respondent.
   Smith, P. J.:

The complaint alleges in substance that on or about the "1st day of March, 1904, the defendant entéred into an oral agreement with the plaintiff whereby she promised and agreed to purchase certain real estate in the town of Guilderland, Albany county, consisting of a small house and a half acre, of ground, of the value of about $350, and convey the same to one Kellie Graham, the plaintiff’s wife, in consideration that the plaintiff would repair the house on said land, improve said premises, pay the taxes and insurance and make a home for plaintiff’s wife and children, all of which the plaintiff promised and agreed to do; that thereafter said premises were purchased by the defendant and plaintiff moved thereupon and occupied the same, and prior to May 1, 1907, expended the sum of $751.36 in repairs, and also performed personal service in the making of said repairs to the amount of $150; that on or about the eleventh day of May the defendant repudiated said" contract and refused to deed the real estate to said Nellie Graham. The judgment asked is that the defendant pay to the plaintiff the moneys expended by him in the making of said repairs and the value of his services. In King v. Brown (2 Hill, 485) the head note in part reads : “A paroi contract to convey land in consideration of a specified sum payable in work is void by the Statute of Frauds, and cannot be the foundation of an action. In such a case the party who has performed the labor may treat the agreement to convey as a nullity and recover the value of the services under the common counts, not exceeding, however, the amount fixed by the agreement, with interest.” I do not understand that counsel disagree upon this general proposition. There was sufficient evidence upon the trial to present a question of fact as to the truth of the allegations of the complaint. If the complaint, therefore, states a cause of action the learned trial judge erred in granting a nonsuit at the close of plaintiff’s evidence.

In the case at bar the premises were not to be conveyed to the promisee, but to a third party. But the agreement was unenforcible because not written. There was no contract, therefore, upon which the beneficiary could sue. To the promisee alone is raised the implied contract to repay the value of the services rendered in performance of the voidable paroi contract, which the promisor afterwards refused to perform. This would seem to be held in Union India Rubber Co. v. Tomlinson (1 E. D. Smith, 364) and Buchanan v. Tilden (5 App. Div. 354; 18 id. 123).

Two objections are strenuously urged to plaintiff’s recovery in this action. It is insisted that the complaint is not in proper form. The case of King v. Brown (supra) is cited as requiring a complaint to be upon the common counts. That case, however, was decided when different forms of actions were required and technical pleading was necessary. Since the abolition of forms of actions by the Code, a plaintiff may simply state the facts upon which he claims relief, and if the facts stated are sufficient to authorize relief his complaint cannot be challenged as not in any particular form. The complaint in this case alleges a paroi contract to convey land unenforcible by the Statute of Frauds, a repudiation of that oral contract by the promisor, the payment of money and the performance of labor and service upon the faith of said contract by the plaintiff, and seeks to recover therefor. These allegations would seem to contain all the allegations necessary to a cause of action upon the contract which the law implies, where services are rendered under a contract void by the Statute of Frauds which the promisor refuses to fulfill.

The defendant further objects that some tax had not been paid which it was a part of the plaintiff’s obligation under the contract to pay. That was the tax for 1906. In May, 1907, when the contract was repudiated by the defendant, no objection was raised that this tax had not been paid. If her refusal to perform had been upon that ground, the tax might then have been paid by the plaintiff. After the absolute refusal of the defendant to perform, the plaintiff was not bound to proceed further in the making of repairs or in the performance of his part of the contract before he could seek to recover for the money already expended in the course of performance on his part.

We are of opinion, therefore, that a sufficient cause of action was alleged and that proof was offered sufficient to make a question of fact for the jury upon the plaintiff’s right to recover. Plaintiff should probably allow, as against his claim, the fair value of the rental of the premises while he was occupying the same. As this implied promise is raised, for the reason that the court will not allow the Statute of Frauds to be made an instrument of fraud, the underlying principle would allow a recovery only for the moneys equitably due from the defendant. It may be that the plaintiff should have offered proof as to the fair rental value of these premises. But upon this question we pass no opinion. As the question was not raised by the motion for a nonsuit, his failure to offer such proof in any event should not have caused the dismissal of his complaint.

The judgment should, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.  