116 Mass. 416 | Mass. | 1875
The plaintiff conveyed his farm in August, 1872, to the defendant, his son-in-law, upon an oral agreement, that the defendant would furnish him, his wife and daughter, with a comfortable support during their lives. The defendant also agreed to give the plaintiff a mortgage on the farm or a life lease thereof to secure the support. Under this agreement the plaintiff with his wife and daughter lived with the defendant on the farm until January, 1874. A difficulty then occurred. The defendant ordered the plaintiff to leave, and refused to give him a mortgage according to the agreement. Since then the defendant has furnished no support to the plaintiff, though his wife and daughter have remained with the defendant.
The defendant denied that he made such an agreement. But the jury found that in consideration of the conveyance he agreed to give the plaintiff a mortgage or life lease to secure the support of himself and family.
By ordering the plaintiff to leave the farm and refusing to give the mortgage, the defendant rescinded his.oral agreement. This agreement, being within the prohibition of the statute of frauds, the plaintiff could not enforce it, but brings this action to recover the value of the property conveyed. It is well settled that he may do so. Where a person pays money, renders service, or conveys property under an agreement, within the statute of frauds, and which the other party refuses to perform, an action will lie by such person, against the party so refusing, to recover the money paid, or the value of the services rendered or property conveyed. Sherburne v. Fuller, 5 Mass. 133, 138. Kidder v. Hunt, 1 Pick. 328. Cook v. Doggett, 2 Allen, 439. Basford v. Pearson, 9 Allen, 387. Williams v. Bemis, 108 Mass. 91. White v. Wieland, 109 Mass. 291. Gillet v. Maynard, 5 Johns. 85. King v. Brown, 2 Hill, 485. Day v. New York Central Railroad, 51 N. Y. 583. Richards v. Allen, 17 Maine, 296. Chit. Con. (11th Am. ed.) 422, n. and cases cited.
In this case the value of the support furnished to the plaintiff by the defendant under the oral agreement, and before its rescission, was properly deducted from the value of the farm, and the plaintiff was entitled to recover the value so found. Day v. New York Central Railroad, 51 N. Y. 583. Richards v. Allen, 17 Maine, 296. Moses v. Macferlan, 2 Burr. 1005.
Judgment on the verdict.