#### GEORGE W. WOOD, Appellant, *v.*ROBERT SHULTIS, Respondent.

*Statute of frauds—property received under contract void by—when promise to pay*for, *implied—Justice's Court—amendment to complaint—when*allowed— *Code,*§ 64, *sub.*11.

Where a party receives property under a contract, void by the statute of frauds, and, for that reason, subsequently refuses to fulfill the contract on his part, the law implies a promise to pay the value of the property so received.

In a proper case the statute (Code, §• 64, sub. 11) makes it the imperative duty of a justice to grant an amendment upon proper terms. The word “ may ” in the statute means “ shall.”

Appeal from a judgment of the County Court of Ontario county, affirming a judgment of a justices’ court, in favor of the defendant.

The complaint alleged that the plaintiff made a contract with the defendant to sell him forty-five trees standing upon his land, in consideration of which the defendant agreed to dig a ditch upon his own land to carry off water from the land of the plaintiff; that he had cut and carried away the trees and refused to dig the ditch. The defendant set up that the contract was void under the statute of frauds.

*D. Herron,*for the appellant.

*John Gillette, Jr.,*for the respondent.

Gilbert, J.:

The only questions in this case are, whether the justice erred in excluding the evidence offered by the plaintiff, and in denying his application to amend the complaint, and we are of opinion that he did, in both instances.

The complaint, it is true, set forth a cause of action arising upon the contract, and the specific relief demanded was damages for the breach. But it also contained all the facts necessary to entitle the plaintiff to recover upon the defendant’s implied promise to pay what the timber was worth. And the prayer for relief did not disable the justice from granting any other relief which would have been adapted to the case. Such a variance between allegation and proof should have been disregarded, for there is not the slightest *310pretext for saying that the defendant could have been misled by it. The complaint set forth .the contract, and averred that the defendant had taken the timber pursuant thereto, but had failed to perform the contract on his part. The answer contained a general denial and an averment that the contract was not in writing, and was for that reason void. If the-complaint had shown that the contract was void, there would have been no variance. How then could the defendant claim to have been misled by such an omission, when the fact appeared in his answer ? That the plaintiff would have been entitled to recover, upon the evidence offered, the actual value of the timber, cannot be doubted. The defendant had taken the timber from the plaintiff under a verbal contract which was void by the statute of frauds. That timber was the consideration of the defendant’s part of the contract. He had failed to perform the contract, and on the trial repudiated it altogether. The law affords no sanction to such a mode of appropriating the property of another, but, on the contrary, implies from such circumstances a promise to pay the value of it.* If the contract had been not only void, but illegal, the plaintiff, on that account, would not have had any remedy, † but, being invalid only by reason of its not being in writing, the plaintiff had a clear remedy. It was the plain duty of the justice to afford him that remedy, ‡ Such a ground of nonsuit as that in this case, if finally sustained, would retrograde the practice more than a quarter of a century.

The justice also committed an error in denying the motion of the plaintiff for leave to amend his complaint. It is manifest that substantial justice would have been promoted thereby, although the amendment was not absolutely necessary, for it would have prevented an erroneous nonsuit, and have saved the parties an expensive and useless litigation. In such a case the statute makes it the imperative duty of a justice to grant an amendment upon proper terms. § When a power is conferred by statute for the promotion *311of justice, suitors have a right to insist upon the exercise of it in a proper case. It is not wholly discretionary. The word *may,*in such a statute, means *shall****

It is claimed that this error is not before us, because it is not specified in the notice of appeal. The opinion of the court below shows that it ivas passed upon there. It is in the record before us. The statute requires the County Court to render judgment upon the *whole*ease, without regard to technical errors or defects.† The judgment of the County Court and of the justice must be reversed, with costs.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Ordered accordingly.

*

 King v. Brown, 2 Hill, 485; Lisk v. Sherman, 25 Barb., 435; Baldwin v. Palmer, 10 N. Y., 232.

†

 Abbott v. Draper, 4 Den., 51; 10 N. Y., *supra.*

‡

**Code, § 64, sub. 10; Wait’s Law and Pr., 408 *et seq.;*Conaughty v. Nichols, 42 N. Y., 83.

§

 Code, § 64, sub. 11.

*

 Macdougall v. Patterson, 11 C. B., 772; Mayor v. Furze, 3 Hill, 612.

†

 Code, § 366.