The appellant’s principal argument is that, notwithstanding the oral agreement, there was subsequently made a written agreement under seal, and this was signed by John S. Barry individually and not as executor, hence the executor could not be bound; that the land was the farm of William Stanton at the time of his decease, and John S. Barry, as executor, by the power conferred by the last will of William Stanton, was the sole person who could enter into a contract of sale. Perhaps this argument would prevail if plaintiff was forced to stand on the written contract alone, but he alleges an oral contract with John S. Barry as executor, and the proof is abundant to sustain it. He alleges possession and payment of the purchase price, and these proven facts are sufficient to entitle plaintiff to a deed of-the. Stanton farm. Besides, the defendant does not plead the Statute of Frauds as a defense—-so the verbal contract cannot be assailed because it was not in writing. The oral contract may well stand, and the written contract also. The oral is not merged in the written because the parties are different. John S. Barry and John S. Barry, executor, being one and the same person, the written contract may be looked into for description of premises which was in the minds of the parties. The conclusion of the
It appears that defendant, as executor, offered a deed in which the premises are described by metes , and bounds.. It also appears that there was a dispute as to the exact boundary line between the Stanton farm and the farm' of John S. Barry, adjoining. To settle this dispute in favor of Barry’s contention, the defendant made a deed b.y metes and bounds, and this is the one offered to plaintiff 'and refused by him. We think plaintiff was entitled to the Stanton farm,-as he purchased it, and the deed should describe it as it was described when the agreement was made. The dispute over the division line is a matter for future consideration.
The judgment should be affirmed, with costs.
Parker, P. J., concurred in result.
Judgment unanimously affirmed, with costs.