¶1An action for money had and received lies to recover back money paid by a party to an agreement which is invalid by the statute of frauds, and which the other party refuses to perform. Cook v. Doggett, 2 Allen, 439. Basford v. Pearson, 9 Allen, 387. Gillet v. Maynard, 5 Johns. 85. An action would also he for the return of any article delivered, or for payment for labor and services rendered, upon such an agreement and under such circumstances. Sherburne v. Fuller, 5 Mass. 133. Lane v. Shackford, 5 N. H. 130. Holbrook v. Armstrong, 1 Fairf. 31. Such is undoubtedly the general rule, as established by numerous authorities. “ Certainly so much as has been expended by the plaintiff in money or labor may be recovered in an action for money paid, or for work and labor done, for the defendant.” Kidder v. Hunt, 1 Pick. 328, 331. Shute v. Dorr, 5 Wend. 204.
¶2The true principle is this: the contract being void and incapable of enforcement in a court of law,” (the defendant having refused to perform it,) “ the party paying the money, or ren *93dering the services in pursuance thereof, may treat it as a nullity, and recover the money or value of the services under the common counts.” King v. Brown, 2 Hill, 485, 487, per Nelson, C. J. In Gray v. Hill, Ry. & Mood. 420, Best, C. J., held that where the defendant, in consideration of certain repairs to be made by the plaintiff, agreed to assign a lease to him, and after the repairs were made refused to make the assignment, and set up the statute of frauds as a defence, the law implied a promise to pay ■‘or the repairs, and this implied promise was “ not touched by she statute.” See also Van Deusen v. Blum, 18 Pick. 229.
¶3The defendant insists that the work was done by the plaintiff in the cultivation of crops which were to be partly his own, and was not done upon the credit of Towne, or with any expectation of charging it against him. Such undoubtedly was the understanding of the parties originally. But as Towne saw fit to say that the special contract was not binding upon him, it cannot be set up by his executor as binding upon the plaintiff. King v. Welcome, 5 Gray, 41. It cannot be treated as a nullity for one purpose, and as a contract for another. It required two years for its completion, and both parties understood that there was to be no profit or advantage to the plaintiff except from the operations of both years taken together. A large part of the labor and expense, incurred in the first year, had no reference whatever to the operations and results of that year, taken by itself, but were a preparation of the land for increased productiveness in the second year. The plaintiff must be considered as having, in that way, paid in advance, in part at least, for the privilege of using the land the second year in the manner agreed upon. By the repudiation of the contract, he has lost the privilege which he had so paid for. The consideration upon which he made that payment has failed by the wilful act of the other party to the contract, and he is therefore entitled to recover back what he has so paid. Basford v. Pearson, 9 Allen, 387. If it had been a payment in money, it would be too plain to be controverted. A payment in labor and services, of which the other has secured the benefit, stands upon the same ground.
¶4Judgment for the plaintiff for the sum agreed.