Kitching v Conforzi (Civil Appeal No. 10 of 1939) [1939] EACA 36 (1 January 1939)

## COURT OF APPEAL FOR EASTERN AFRICA

BEFORE SIR JOSEPH SHERIDAN, C. J. (KENYA), WHITLEY, C. J. (UGANDA) AND SIR LLEWELYN DALTON, C. J. (TANGANYIKA)

## R. A. H. KITCHING, *Appellant (Original Plaintiff)*

versue

I. CONFORZI, Respondent (Original Defendant) CIVIL APPEAL No. 10 OF 1939

(Appeal from decision of Morgan, J (Nyasaland))

- Contract not to be performed within a year-Contract of service-Absence of memorandum under section 4 Statute of Frauds-Implied contract for remuneration of services actually rendered. The facts appear sufficiently from the judgment. - Held (28-4-39).—Where an express contract of service is unenforceable by reason of non-compliance with section 4 of the Statute of Frauds a contractual<br>party who has rendered services under the said contract is entitled under an implied contract to reasonable remuneration in respect of the services actually rendered from the party who accepted and received the benefit of such services. (Scott v. Pattison, 1923, 2 K. B. D. 723, followed.)

Appellant absent, unrepresented.

Wright for the respondent.

The judgment of the Court was delivered by Whitley, C. J.

JUDGMENT.—The appellant was not represented before us but we have had the assistance of the written argument which his advocate Mr. Lilley has prepared for us. We would also add that we appreciate the very fair way in which Mr. Wright who appeared for the respondent and said all that could be said in support of the judgment, has laid the case before us. We are satisfied that the case must go back for retrial.

The appellant was engaged by respondent for four years. There was no agreement in writing. The appellant alleges that he has not been paid all that he is entitled to and claims a further £2-10/- per month for the twenty-two months during which he worked. His advocate realized that section 4 of the Statute of Frauds renders the four years' contract unenforceable but he relies on an implied contract from year to year. The learned Judge held that in the absence of an agreement in writing any collateral consideration to the agreement should be evidenced in writing and he dismissed the claim without hearing any evidence. His attention was not drawn to the case of Scott v. Pattison (1923, 2 K. B. D. 723) in which it was held that a contract of service was not enforceable by reason of the Statute of Frauds but that the plaintiff was entitled to sue in assumpsit upon an implied promise by the defendant to pay for the services rendered. That case seems to us to be conclusive. The judgment of Salter, J. at page 727 sets out the law so shortly and convincingly that we propose to quote the material portions.

è.

"In my opinion the County Court Judge was right in holding that the express contract between the parties was unenforceable by reason of the Statute of Frauds, but it does not follow from that that the plaintiff has no legal right to redress against the defendant. It was contended before us that if one party to a contract, which is unenforceable by reason of section 4 of the Statute of Frauds, has fully performed his part of the contract, he can then call upon the other party to perform his part of the contract, in other words that he can enforce the contract against him. I am not prepared to assent to that proposition... If a party to a contract, which is unenforceable under the Statute of Frauds, has rendered services under that contract to the other party, and the other party has accepted and benefited by those services, then I think that the party who has rendered the services can sue the other party in debt on an implied contract to pay him according to his deserts. That is not enforcing the unenforceable contract but a different contract which is quite enforceable. That is the plaintiff's right, and I think that this point was raised, though not very clearly, before the County Court Judge, and it certainly has not been determined. It is said that the plaintiff has been paid all that is fair, but this has not been decided and must be ascertained. . . All these are questions of fact for the County Court Judge to consider. If the plaintiff can satisfy the Court that he has not been paid all that is fair and reasonable that he should in all the circumstances receive, he will succeed. If he fails to prove that he will fail. I agree therefore that the case must go back for a new trial."

In the present case we think that evidence should have been taken to ascertain whether or not the plaintiff has been paid all that he is entitled to. The appeal will accordingly be allowed with costs in this Court and the case will be sent back for retrial. Costs of the first hearing will abide the result of the retrial. The appellant will have the costs of and incidental to the application for leave to appeal.