majority">Biddle, C. J.

The complaint of the appellee, against the appellant, avers, that the parties agreed that the appellee should put out upon a certain twenty acres of land, belonging to the appellant, five hundred peach trees, at his own expense, and take care of and cultivate them during the lifetime of the trees; for which expense and labor the appellee was to receive two-thirds of the prod*63uct of said trees during their lifetime; that he so purchased, at great expense, and put out, said peach trees on said land, in the month of March, 1864, cared for and cultivated them until the month of February, 1868, at which time the appellant sold and conveyed the land, without the knowledge or consent of the appellee, to George W. Miller, up to which time the trees had borne no fruit, but were in fine growing condition, and in the years 1868,1869, 1870 and 1871, bore a crop of peaches of the value of three hundred dollars per year, of the benefits of which the appellee was deprived, to the damage, etc.

Answer:

1. General denial; and,

2 and 3. Special paragraphs.

To the 2d and 3d paragraphs, separate demurrers, for the alleged want of facts, were sustained, and exceptions saved.

The appellant assigns the insufficiency of the complaint for error, and also insists, that the demurrers to the second and third paragraphs of answer should have been carried hack and sustained to the complaint. His objection to the complaint is, that the contract it sets up is within the statute of frauds, and, as it is not shown to be in writing, can not be enforced. If no part of the contract had been performed by either party, perhaps his point would he well taken; but the contract was not void, although not in writing, and for the part performance by the appellee, as it is. alleged, whereby the appellant was benefited, an action will lie upon the implied promise to pay, independent of the special contract. The appellant can not receive a benefit under the contract, and then, by breaking it, avoid payment for what he has received. Wilson v. Ray, 13 Ind. 1; Mather v. Scoles, 35 Ind. 1.

For a full examination of the question as to how far a party may recover for a part performance of a special contract, which, as a special contract, has failed, see Adams v. Cosby, 48 Ind. 153.

*64As the substance of the second and third paragraphs of answer is, that the contract is within the statute of frauds, and not in writing, holding the complaint good necessarily decides that they are bad.

■ The judgment is affirmed, at the costs of the appellant-

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