| Mass. | Jan 30, 1878
It has been settled by numerous decisions that an action will lie to recover back money paid, or for services rendered, by one party to an agreement which is invalid by the statute of frauds, and which the other party refuses to perform Kidder v. Hunt, 1 Pick. 328, 331. Gillet v. Maynard, 5 Johns 85. Gray v. Hill, Ry. & Mood. 420. King v. Brown, 2 Hill, 485. Basford v. Pearson, 9 Allen, 387. Williams v. Bemis, 108 Mass. 91" court="Mass." date_filed="1871-10-15" href="https://app.midpage.ai/document/williams-v-bemis-6416589?utm_source=webapp" opinion_id="6416589">108 Mass. 91. Parker v. Tainter, ante, 185.
But the plaintiff does not bring his case within this rule Under the instructions given, the jury must have found that, although the services as claimed by the plaintiff were actually rendered, yet he had agreed that he should be paid in the manner stipulated in an executory contract which the defendants are ready and able to perform. If he was to be paid partly in a lot of land belonging to the female defendant, and partly in blacksmith’s work to be furnished by Cameron & Emerson, and the jury were satisfied that the defendants were ready and willing, at all times, to convey the land, at its fair market value, and Cameron & Emerson were always ready to furnish the blacksmith’s work for him when called for at agreed or reasonable
It is true that it does not appear from the bill of exceptions that there was any specific designation of the lot of land which he was to take. It was to be one of the lots on the plan, and was to be a low priced one, and by “ low priced ” we understand it was to be at a low rate of price in proportion to its area. He would under such a contract have a right to select any lot answering that description. If he refused to select and demand any lot, and denied that he was bound to take any, he cannot prove in this action that, after allowing for the value of a lot and the stipulated amount to be paid in blacksmith’s work, there would still be a balance due to him. The special contract, if proved as alleged, was executory, and, as there is no refusal by the defendants to fulfil it, he cannot recover anything under this declaration.
The questions which the plaintiff desired to have answered by the jury are sufficiently disposed of by the general verdict, and we cannot see that the plaintiff suffered any detriment by the refusal of the judge to require them to be specifically answered.
The ruling of the court, allowing the amendment in the name and description of the cause in the verdict, by adding the words “ and wife ” after the name of the male defendant, was in conformity to the truth, and wholly a matter of sound judicial discretion. As such, it was not a matter of exception.
Exceptions overruled.