239 Mass. 569 | Mass. | 1921
The plaintiff, a real estate broker, undertook to procure an exchange for a block in Springfield, owned by the defendant. He finally brought a proposition whereby the defendant would obtain three parcels of real estate and $2,000 in cash for the equity in his property. There was evidence on which the jury could find that the defendant orally agreed that if the exchange should be negotiated, he would retain the $2,000, and would deed to the plaintiff the land in question, or pay him the value of it. The plaintiff did procure the exchange. The $2,000 was paid to the defendant, and the three lots were conveyed to him. Subsequently the defendant sold and conveyed one of the lots to a third person, and the mortgages on the other two were foreclosed. At the trial there was evidence of the value of these parcels. At the conclusion of the plaintiff’s case the trial judge directed a verdict for the defendant.
The sole question before us is whether the statute of frauds precludes the plaintiff from recovering on said alleged oral agreement. Admittedly the promise to convey to the plaintiff the three parcels received by the defendant could not be enforced, by reason of that statute. If the contract was an entiré one, inasmuch as part is within the statute, the contract is unenforceable as a whole, and neither party can be required to perform part. Gould v. Mansfield, 103 Mass. 408. 8 Ann. Cas. 963 note. Apparently it was not a divisible single contract, within the proper meaning of “divisible,” where on performance on one side of each of its successive divisions, the other party becomes indebted for the agreed price of the division. Williston on Contracts, § 861. Barrie v. Earle, 143 Mass. 1. Hurley v. Donovan, 182 Mass. 64.
As there was evidence entitling the plaintiff to go to the jury, the exceptions must be sustained; and it is
So ordered.