Wells, J.
The court was not bound to rule upon the sufficiency of the plaintiff’s evidence to maintain the action, before the whole testimony was closed upon both sides. It is entirely a matter of discretion whether to do so or not, and is not open [360]*360to exception. This has been too often decided to admit of any question. Bassett v. Porter, 4 Cush. 487. McGregory v. Prescott, 5 Cush. 67. Morgan v. Ide, 8 Cush. 420. Barrett v. Malden & Melrose Railroad Co. 3 Allen, 101. Manning v. Albee, 14 Allen, 8. Bradley v. Poole, 98 Mass. 179.
The principal ground of objection to the plaintiff’s recovery is that the agreement is within the statute of frauds as a con ■ tract for the sale of lands, and so void. The agreement, as ser forth in the special count, seems to be obnoxious to that objection. But there being also a count for money paid by the plaintiff to the use of the defendant and at his request, we must look at the facts of the case to see whether, as the question was presented to the jury, the verdict can be sustained. It appears that, in the arrangement for the purchase of the interest in lands, there were four persons concerned as parties. The contract upon which this action is brought was between the plaintiff and the defendant only. It related to the proposed purchase; but its connection therewith was merely collateral. Separated from the principal agreement, as it may be, and, for the purposes of enforcement, must be, on account of the diversity of the parties, it becomes simply, upon one side, a promise to advance money for another, at his request; and, on the other, an express promise to repay it. The money having been advanced, the obligation to repay becomes a debt, which may be enforced by an action upon the express promise, or by the general count for money paid.
The case, however, was submitted to the jury upon a somewhat different aspect. The court instructed the jury “ that if the plaintiff proved, to their reasonable satisfaction, that he and the defendant agreed to join in the purchase, and to pay for the property in question, and that for the convenience of the parties the payment was to be upon drafts upon the plaintiff, of which drafts the defendant was to pay one half; and if the property was bought under this agreement, and the drafts were presented to and accepted by the plaintiff, before any notice from the defendant that he refused to pay his half of them or go on any further in the enterprise of buying the property with the plaintiff; and if the plaintiff proceeded to pay them according to his [361]*361acceptance; he was entitled to maintain his action.” So long as such an agreement continued unexecuted, it was within the statute of frauds, and liable to be avoided for that reason. The defendant might have revoked his request to the plaintiff to make advances for him, and thus terminated all liability on his part. But advances made under a voidable agreement for the purchase of land are made upon a good consideration, and cannot be recovered back, unless the contract be rescinded by the refusal or failure of the other party to convey. Coughlin v. Knowles, 7 Met. 57. If, therefore, the plaintiff made such advances for the defendant, before his request to do so had been revoked, he may recover the amount so advanced, under the general count for money paid. The statute of frauds does not apply to such an action, whether brought upon the implied or upon an express agreement. The obligation to repay money advanced for the use of the defendant is independent of the character of the consideration upon which the advance is made, provided it be not illegal. And if an express promise to that effect be separable from the principal agreement to which it is incident, it may be enforced, although the principal agreement might be avoided. The fact that a certain stipulation is made at the same time, and forms a part of an arrangement for the sale of an interest in land, does not prevent an action from being maintained upon it; provided, 1st, that the action does not tend to enforce the sale or purchase of the interest in land, and 2d, that, in other respects, the stipulation is susceptible of being separately enforced by action. Such stipulations, collateral to the sale, but contained in the same contract, have been repeatedly enforced in this Commonwealth. Pierce v. Woodward, 6 Pick. 206. Page v. Monks, 5 Gray, 492. Brackett v. Evans, 1 Cush. 79. Preble v. Baldwin, 6 Cush. 549.
The plaintiff’s acceptance of drafts for the purchase money fixed the rights and obligations of the parties from that time, and the defendant was no longer at liberty to revoke his request. The instructions required the jury also to find that the property Was bought before any notice from the defendant of his intention to revoke.
[362]*362It has ’ always been held in this Commonwealth that, when all parts of the agreement which affect the obligation of either party to purchase or sell any interest in land have been fully performed, the remaining obligations are no longer within the statute, although they may have been so while the contract continued executory. Wilkinson v. Scott, 17 Mass. 249. Nutting v. Dickinson, 8 Allen, 540. Basford v. Pearson, 9 Allen, 387. The statute is satisfied by the voluntary performance, by the parties, of those undertakings of which it required written evidence. This principle was applied to cases somewhat like the present, in Davenport v. Mason, 15 Mass. 85, and Trowbridge v. Wetherbee, 11 Allen, 361.
The property was purchased, not to be held by either the plaintiff or the defendant, but was to be taken for the basis of a mining corporation. The interest which the plaintiff acquired, and in which, by the agreement, the defendant was to share, was an interest in the stock, or proceeds of the stock, of such corporation. The purchase of the interest in real estate was a step only towards the performance of the whole agreement, and was completed before the defendant gave notice of revocation.
It is held by some of the English authorities that the consideration agreed by paroi to be paid for a conveyance of real estate can be recovered only upon a subsequent independent promise; the moral obligation and the previous voidable contract answering as a consideration for the new promise. Cocking v. Ward, 1 C. B. 858. Kelly v. Webster, 12 C. B. 283. Buttemere v. Hayes, 5 M. & W. 456. This doctrine may result ",n a measure from the rule, which is there established, that the consideration of an agreement, within the statute of frauds, must be set forth in the writing, as well as the promise. However that may be, the English authorities upon that subject have not been very closely followed by our courts. It was early decided, in Packard v. Richardson, 17 Mass. 122, that the consideration need not be set forth in the writing to be enforced, but might be proved aliunde; and it is now so provided by the statute itself. Rev. Sts. c. 74, § 2. Gen. Sts. c. 105, § 2.
Upon the whole, the court are all satisfied that the promise to [363]
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Wells, J.
The court was not bound to rule upon the sufficiency of the plaintiff’s evidence to maintain the action, before the whole testimony was closed upon both sides. It is entirely a matter of discretion whether to do so or not, and is not open [360]*360to exception. This has been too often decided to admit of any question. Bassett v. Porter, 4 Cush. 487. McGregory v. Prescott, 5 Cush. 67. Morgan v. Ide, 8 Cush. 420. Barrett v. Malden & Melrose Railroad Co. 3 Allen, 101. Manning v. Albee, 14 Allen, 8. Bradley v. Poole, 98 Mass. 179.
The principal ground of objection to the plaintiff’s recovery is that the agreement is within the statute of frauds as a con ■ tract for the sale of lands, and so void. The agreement, as ser forth in the special count, seems to be obnoxious to that objection. But there being also a count for money paid by the plaintiff to the use of the defendant and at his request, we must look at the facts of the case to see whether, as the question was presented to the jury, the verdict can be sustained. It appears that, in the arrangement for the purchase of the interest in lands, there were four persons concerned as parties. The contract upon which this action is brought was between the plaintiff and the defendant only. It related to the proposed purchase; but its connection therewith was merely collateral. Separated from the principal agreement, as it may be, and, for the purposes of enforcement, must be, on account of the diversity of the parties, it becomes simply, upon one side, a promise to advance money for another, at his request; and, on the other, an express promise to repay it. The money having been advanced, the obligation to repay becomes a debt, which may be enforced by an action upon the express promise, or by the general count for money paid.
The case, however, was submitted to the jury upon a somewhat different aspect. The court instructed the jury “ that if the plaintiff proved, to their reasonable satisfaction, that he and the defendant agreed to join in the purchase, and to pay for the property in question, and that for the convenience of the parties the payment was to be upon drafts upon the plaintiff, of which drafts the defendant was to pay one half; and if the property was bought under this agreement, and the drafts were presented to and accepted by the plaintiff, before any notice from the defendant that he refused to pay his half of them or go on any further in the enterprise of buying the property with the plaintiff; and if the plaintiff proceeded to pay them according to his [361]*361acceptance; he was entitled to maintain his action.” So long as such an agreement continued unexecuted, it was within the statute of frauds, and liable to be avoided for that reason. The defendant might have revoked his request to the plaintiff to make advances for him, and thus terminated all liability on his part. But advances made under a voidable agreement for the purchase of land are made upon a good consideration, and cannot be recovered back, unless the contract be rescinded by the refusal or failure of the other party to convey. Coughlin v. Knowles, 7 Met. 57. If, therefore, the plaintiff made such advances for the defendant, before his request to do so had been revoked, he may recover the amount so advanced, under the general count for money paid. The statute of frauds does not apply to such an action, whether brought upon the implied or upon an express agreement. The obligation to repay money advanced for the use of the defendant is independent of the character of the consideration upon which the advance is made, provided it be not illegal. And if an express promise to that effect be separable from the principal agreement to which it is incident, it may be enforced, although the principal agreement might be avoided. The fact that a certain stipulation is made at the same time, and forms a part of an arrangement for the sale of an interest in land, does not prevent an action from being maintained upon it; provided, 1st, that the action does not tend to enforce the sale or purchase of the interest in land, and 2d, that, in other respects, the stipulation is susceptible of being separately enforced by action. Such stipulations, collateral to the sale, but contained in the same contract, have been repeatedly enforced in this Commonwealth. Pierce v. Woodward, 6 Pick. 206. Page v. Monks, 5 Gray, 492. Brackett v. Evans, 1 Cush. 79. Preble v. Baldwin, 6 Cush. 549.
The plaintiff’s acceptance of drafts for the purchase money fixed the rights and obligations of the parties from that time, and the defendant was no longer at liberty to revoke his request. The instructions required the jury also to find that the property Was bought before any notice from the defendant of his intention to revoke.
[362]*362It has ’ always been held in this Commonwealth that, when all parts of the agreement which affect the obligation of either party to purchase or sell any interest in land have been fully performed, the remaining obligations are no longer within the statute, although they may have been so while the contract continued executory. Wilkinson v. Scott, 17 Mass. 249. Nutting v. Dickinson, 8 Allen, 540. Basford v. Pearson, 9 Allen, 387. The statute is satisfied by the voluntary performance, by the parties, of those undertakings of which it required written evidence. This principle was applied to cases somewhat like the present, in Davenport v. Mason, 15 Mass. 85, and Trowbridge v. Wetherbee, 11 Allen, 361.
The property was purchased, not to be held by either the plaintiff or the defendant, but was to be taken for the basis of a mining corporation. The interest which the plaintiff acquired, and in which, by the agreement, the defendant was to share, was an interest in the stock, or proceeds of the stock, of such corporation. The purchase of the interest in real estate was a step only towards the performance of the whole agreement, and was completed before the defendant gave notice of revocation.
It is held by some of the English authorities that the consideration agreed by paroi to be paid for a conveyance of real estate can be recovered only upon a subsequent independent promise; the moral obligation and the previous voidable contract answering as a consideration for the new promise. Cocking v. Ward, 1 C. B. 858. Kelly v. Webster, 12 C. B. 283. Buttemere v. Hayes, 5 M. & W. 456. This doctrine may result ",n a measure from the rule, which is there established, that the consideration of an agreement, within the statute of frauds, must be set forth in the writing, as well as the promise. However that may be, the English authorities upon that subject have not been very closely followed by our courts. It was early decided, in Packard v. Richardson, 17 Mass. 122, that the consideration need not be set forth in the writing to be enforced, but might be proved aliunde; and it is now so provided by the statute itself. Rev. Sts. c. 74, § 2. Gen. Sts. c. 105, § 2.
Upon the whole, the court are all satisfied that the promise to [363]*363repay money, to be advanced by the plaintiff at the defendant’s request, although that money was advanced for the purpose of making a purchase of real estate, and upon an oral agreement to that effect, is not of itself “ a contract for the sale (or purchase) of lands; ” and, if the money be in fact advanced before the request is revoked, an action upon such a promise is not an action forbidden by the statute. •
The cases cited by the defendant upon this point are mostly suits to enforce rights which the purchaser claimed to have acquired in the real estate under a paroi agreement. The decisions are uniform in that respect.
If the arrangement be regarded as one of partnership, it would make no difference. A promise to repay money advanced by one partner for another partner, to make up his share of the joint capital, or for any other special purpose, aside from the transaction of partnership business, may be recovered without waiting for dissolution and settlement of the final balance. Gardner v. Cleveland, 9 Pick. 334. Williams v. Henshaw, 11 Pick. 79. Rockwell v. Wilder, 4 Met. 556.
The refusal of the defendant did not impose upon the plaintiff the duty to manage the property purchased in any different manner from that contemplated by the arrangement under which it was purchased. If he had disposed of it otherwise, or converted it in any way to his own exclusive use, he would undoubtedly be obliged to account for the proceeds; and the defendant might require his share to be applied towards the claim of the plaintiff against him. But that would be matter of defence. We see nothing in the case which should require the plaintiff to do more than he has done, in the way of holding the property and offering to transfer his share to the defendant, in order to maintain his action. The rulings and instructions of the court seem to us to be in all respects sufficient and proper. Exceptions overruled.