Elliott v. Jenness

111 Mass. 29

Opinion

Chapman, C. J.

The declaration alleges that the defendant, in consideration of the purchase by the plaintiff from the defendant at her request of a tract of land on certain streets in Lynn for the sum stated, promised to grade, crown and shape, make fit for travel and finish to the degree stated, the said streets on which the land bounded throughout their whole width; and that the plaintiff purchased and paid for the land, took the deed, a copy of which was annexed to the declaration, and requested the defendant to do said work, which he refused to do. The defendant demurs to the declaration “ as setting up an oral contract relating to the conveyance of land, inconsistent with the terms of the deed annexed to the declaration, and being without consideration.”

But the declaration does not allege that the contract is oral. Even when a contract is required by the statute of frauds to be in writing, a declaration upon it need not allege that it is in writing. Price v. Weaver, 18 Gray, 272. If it is alleged to be oral, a demurrer will lie, otherwise the statute must be pleaded.

The contract is alleged to be made in consideration that the plaintiff would purchase the land. Such a consideration is valid. Pierce v. Woodward, 6 Pick. 206. Brackett v. Evans, 1 Cush. 79. The demurrer must therefore be overruled, and the judgment for ' the plaintiff Affirmed.