Peabody v. Fellows

58 N.E. 1019, 177 Mass. 290, 1901 Mass. LEXIS 631

Opinion

Knowlton, J.

We are of opinion that the first and second counts of the declaration, when taken in connection with the copy of the unsigned paper annexed, set out agreements of the defendant which must be deemed to have been oral. The second count, after reciting the terms of the agreement, avers that the “ defendant further agreed to give a writing to said effect.” The first count avers that the defendant “ agreed to execute and sign a certain instrument, a copy of which is hereto annexed,” as a consideration for the land sold, and afterwards refused to sign or execute it. This construction of these counts is in accordance with the averments of the defendant’s answer in which he pleads the statute of frauds.

Construing the first part of the declaration in this way, the principle of law on which the action is founded is, that if one has received money or other property as the consideration of an executory contract which cannot be enforced by reason of the statute of frauds, and if he then refuses to perform the contract, he is liable to the other party under an implied promise to return the money or pay for the property. Basford v. Pearson, 9 Allen, 387. Williams v. Bemis, 108 Mass. 91. White v. Wieland, 109 Mass. 291. Dix v. Marcy, 116 Mass. 416. Root v. Burt, 118 Mass. 521. Parker v. Tainter, 123 Mass. 185. Twomey v. Crowley, 137 Mass. 184. O’ Grady v. O’ Grady, 162 Mass. 290. Miller v. Roberts, 169 Mass. 134. This principle has often been applied when one who has received a conveyance of real estate refuses to perform his oral contract which was the consideration for the transfer. These counts of the declaration bring the case within this principle.

The fourth count, considered apart from the others, is in the usual form of declaring on the common counts. Whether it will be sustained by the evidence is a question which is not now before us. It seems to state a good cause of action.

Judgment reversed ; demurrer overruled.