213 Mass. 95 | Mass. | 1912
The plaintiff mortgaged certain premises to the defendant’s testator. The defendant’s testator instituted foreclosure proceedings and the plaintiff alleges that the defendant’s testator agreed that if he, the plaintiff, would not bid at the foreclosure sale or procure other persons to bid, he, the defendant’s testator, would bid the premises in and sell them at private sale and pay over to the plaintiff any balance that remained after deducting the mortgage, interest and expenses. The plaintiff alleges that he refrained from bidding or procuring others to
We think that the ruling and finding of the judge were right. This is not an action to enforce an oral contract for the sale of land or an interest in or concerning the same. The land has been sold and nothing remains to be done except for the defendant to account for and pay over the excess. That part of the contract is separable from the rest of the contract and, the rest of the contract having been performed, there is no reason why this part of it should not be enforced. And to that effect see Page v. Monks, 5 Gray, 492; Trowbridge v. Wetherbee, 11 Allen, 361; Graffam v. Pierce, 143 Mass. 386. The case of Kennerson v. Nash, 208 Mass. 393, cited by the defendant, is entirely different from the case before us. It is not necessary to consider whether, if the contract did come within the statute of frauds, it would have been taken out of the statute by part performance. •
Exceptions overruled.
The case was submitted on briefs.
Hardy, J.