The opinion of the Court was delivered, December 11, by

The legal principles applied to this case by the learned judge before whom it was tried are free from objection.

The will of defendant’s testator was in clear violation of the contract made with the plaintiff below. After the contract was so plainly disregarded by the decedent in his lifetime, it cannot be interposed by his exécutor to prevent a recovery by Fry for the value of his services.

It will not do to aver the inability of Nelson to set aside the contract, as a reason why his attempt to do so will not authorize Fry to treat it as rescinded, and recover for his labor upon a quantum meruit. Where two persons enter into a contract, and after part performance by one, the other denies its- existence, and gives notice of his intention to disregard it, the party not in default may at his option perform fully and enforce the contract, or consider it at an end and recover for part performance.

Judgment affirmed.