162 Mass. 290 | Mass. | 1894
The jury were instructed to return a verdict for the defendant if they found that any debt except the mortgage debt was to be deducted from the value of the premises. They returned a verdict for the plaintiff, and therefore must have found that the mortgage debt was the only one to be deducted. On her direct examination the plaintiff’s testimony tended to show that the agreement was as stated in the declaration. On her cross-examination she said some things which seemed to be inconsistent with her direct testimony. The jury may have found, however, that the inconsistencies were only apparent, and not real, and were due to mistake and misunderstanding on her part. The testimony of the witness Haley also tended to show that the contract was as set out in the declaration. It was for the jury to say, upon the whole case, what the contract was, and we think that there was evidence that justified their verdict.
We do not understand the defendant seriously to contend that the statute of frauds is a defence. If the contract set out in the declaration was within the statute, it would not help him. The plaintiff has conveyed the premises according to agreement, and the defendant, after getting possession of. the property, has refused to perform his part of the contract. It is well settled in this State, that under such circumstances the plaintiff may recover the value of the property conveyed, even though the agreement is within the statute. Dix v. Marcy, 116 Mass. 416, and cases cited. Root v. Burt, 118 Mass. 521. Parker v. Tainter, 123 Mass. 185. Exceptions overruled.
