The plaintiff contends that the contract between himself and John M’Nulty, as to the subject of the deposit of the money with the defendant, which is now sought to be recovered from him, as so much money held to the use of the plaintiff, was invalid and inoperative in law, inasmuch as it was an oral contract concerning the sale of land, and so within the statute of frauds. Rev. Sts. c. 74, <§> 1. This is true, and would be a good answer, if the party offering proof of such contract had offered the same to sustain an action to enforce such contract, and to compel a conveyance of the land, or to recover damages for the failure so to do. But it is equally true, that the provisions of the statute are not so broad as to entitle a party, who has entered into an oral contract, by which he is to receive a conveyance of land, and towards payment for which he has made advances in money, to set aside such contract as a nullity, and reclaim the money so advanced, the other party being no way in fault, but being both able and ready to perform *62his contract, and to make the conveyance in the manner stipulated by the oral agreement. The principle is very well settled, that no such right exists, in the case just supposed, to reclaim the money, upon the ground that the contract is within the statute of frauds. Lane v. Shackford, 5 N. Hamp. 130. Duncan v. Baird, 8 Dana, 101. Shaw v. Shaw, 6 Verm. 75. Chit. Con. (5th Amer. ed.) 306, note. There was here no failure of consideration, until M’Nulty should refuse to comply with the terms of his contract, or neglect to perform what he had stipulated to do, upon the payment of the money. Had he thus refused, a different case would be presented; but upon the state of facts reported, no such failure is shown, and as between the original contracting parties, the plaintiff could not have reclaimed the money, if paid by him to M’Nulty on such a contract.

Has the plaintiff any better right to reclaim it from the defendant? If this money had remained in the plaintiff’s own hands, it is quite clear that he could not have been compelled to pay the same to M’Nulty upon an oral agreement for the sale of land, and he might have rested his defence upon the statute of frauds. But he parted with his money; he cannot be said to have left it in the hands of his servant or agent, with the power on his part to reclaim it at pleasure, and to forbid its being paid over to M’Nulty. The money was placed in the hands of the defendant, under a written contract executed by him, and the terms of this contract show that he held it for M’Nulty dependent only upon the condition that M’Nulty performed his part of the agreement. The two receipts given by the defendant for the money, as well that delivered to the plaintiff as that given to M’Nulty, state that the money deposited with the defendant was to be paid to M’Nulty when he should complete the contract on his part. The effect of thus placing the money in the hands of the defendant was to render it irreclaimable by the plaintiff, except in case of failure on the part of M’Nulty to fulfil his agreement.

The jury have passed upon the facts in controversy between the parties. They have found the agreement to be such as the *63defendant alleged it to be; that instruments of conveyance were completed by M’Nulty, in conformity with the terms of the oral agreement; that they were such as were deemed sufficient by the person selected by the parties to judge in the matter; that these deeds were duly tendered to the plaintiff; and that when they were tendered, the plaintiff made no objection to the want of title in the grantors, and did not refuse to accept the deeds for that cause.

It seems to us, that upon the facts found by the jury, and upon the rules of law already stated, the plaintiff is not entitled to recover, and that the verdict was properly taken for the defendant.

Exceptions overruled