¶1No objection to the declaration was made in the court below. It is raised here for the first time, and comes too late. I should think, however, it is the proper declaration for this case. The defendant below drew in the plaintiff below to perform labor, on a fraudulent representation that he had a title to the land upon which the mill was to be erected, and could communicate a right to the defendant below as a tenant in common. On discovering that the defendant had not title, the plaintiff below rescinds the contract, and sues in general indebitatus assumpsit. That he may do. The law will imply a promise to pay for the labor, Whipple v. Dow, 2 Mass. R. 415, *27on the same principle that it would raise a promise to repay money advanced on such a fraudulent representation. See 2 Kent’s Com. 469, 470, and the cases there cited.
¶2We cannot, on error from the common pleas, look into the weight of evidence as to the fraud; or judge whether too much has been allowed as the value of the labor. See 11 Wendell, 477. 2 id. 303. 5 Cowen, 587.
¶3The objection that the contract was within the statute of frauds is not available. The action is not for a breach of a contract to convey land, but for the value of services which the plaintiff below was fraudulently drawn in to perform. This was under a contract by parol, and therefore void at law, it is true; but the plaintiff below might have enforced a performance of the oral contract by bill in equity, had the defendant been owner. Instead of that he draws the plaintiff in to commit a trespass upon another. The least the plaintiff is entitled to, is a full compensation for his labor. It has long been settled, that though a promise to pay the debt of a third person is void by the statute of frauds, yet a fraudulent misrepresentation as to his circumstances is the ground of an action. , Money paid on a parol contract, to purchase land, may be recovered back, on the ground that such contract being void, there is a failure of consideration. Rice v. Peet, 15 Johns. R. 503. Per Savage, C. J., in Thayer v. Rock, 13 Wendell, 54.
¶4Judgment affirmed.