I. Any agreement for the sale of real property or of an interest therein is invalid, unless the same, or some note or memorandum thereof, be in writing and subscribed by the party charged. ( Code of Civil Procedure, secs. 1971, 1973.)
And evidence of any agreement therefor " cannot be received ," without the writing. (Ibid.)
II. The agreement, being invalid, furnishes no consideration to support a promise by the defendant founded thereon. (Mayer v. Child , 47 Cal. 142; Ehle v. Judson, 24 Wend. 97; Horsey v. Graham, Law R. 5 Com. P. 9; Buttemere v. Hayes, 5 Mees. & W. 456; Cocking v. Ward, 1 M. G. & S. 858; Hodgson v. Johnson, El. B. & E. 685.)
III. No action can be brought upon such contract. The plaintiff's remedy is limited to the implied contract for services rendered. (Fuller v. Reed , 38 Cal. 110; Patten v. Hicks , 43 Cal. 509; Hill v. Hooper, 1 Gray, 133.)
Even in an action upon the implied contract the plaintiff cannot show the value of the land. He can only show what the services were worth. (Erben v. Lorillard , 19 N.Y. 302; Patten v. Hicks , 43 Cal. 509; Baldwin v. Palmer , 10 N.Y. 234.)
We submit that the action of the Court below was correct and should be affirmed.
JUDGES: Rhodes, J., expressed no opinion.
OPINION By the Court:
The case of the plaintiff is not like that of Mayers v. Child , 47 Cal. 142, as supposed by the Court below. In that case the vendor of the stock repudiated the alleged contract, and so the transaction turned out to be of no benefit to the defendant there. But here the defendant did obtain an advantage, and acquired the title to a large property by means of the contract made by him with McCarthy, and upon which this action is brought.
We think that the views expressed by Lord Chief Justice Best, in Seaman v. Price, 10 Moore, and by the Supreme Court of the State of Missouri, in Kratz v. Stocke , 42 Mo. 351, are appropriate to the case before us, and upon the principles maintained in those cases the judgment given below should be reversed here.
Judgment reversed, and cause remanded for a new trial. Remittitur forthwith.