Cromwell v. Norton

• Decision Date: 18 December 1906
• Citation: 193 Mass. 291,79 N.E. 433
• Parties: CROMWELL v. NORTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 291

79 N.E. 433

CROMWELL v. NORTON.

Supreme Judicial Court of Massachusetts, Dukes County.

December 18, 1906

COUNSEL

Wm A. Morse, for plaintiff.

B. T Hillman, for defendant.

OPINION

MORTON, J.

This is an action to recover the value of certain real estate conveyed by the plaintiff to the defendant. The case was tried partly on agreed facts and partly on oral testimony. There was a verdict for the plaintiff and the case is here on exceptions by the defendant to certain rulings and refusals to rule in regard to certain matters of evidence and in regard to the statute of frauds and the statute of limitations both of which defenses were set up in the answer.

The plaintiff's case was in substance this: Being about to go to sea he conveyed the land in question to the defendant, who is his sister, in 1880, so that if he did not return she should have it, but with the agreement on her part that if he did return and wanted it at any time she should reconvey it to him. He returned but the fact that he had given the deed of the land in question escaped his attention as he testified till it was recalled to him by her in 1902 in connection with another matter when he demanded a reconveyance of the land which she refused. The defendant contended that she was to sell a part of the land and pay over the proceeds which she did and that as to the rest, being the land in controversy the conveyance was an absolute one and she denied that there was any such agreement as alleged by the plaintiff. So far as the statute of frauds is concerned the case comes within the well-settled principle that if one conveys to another land or other property pursuant to an oral agreement which such other party refuses to perform and cannot be compelled to perform because within the statute, the value of the property so conveyed can be recovered by the party conveying it. Kelley v. Thompson, 181 Mass. 122, 63 N.E. 332; Peabody v. Fellows, 177 Mass. 293, 58 N.E. 1019; Miller v. Roberts, 169 Mass. 145, 47 N.E. 585; Holbrook v. Clapp, 165 Mass. 563, 43 N.E. 508; O'Grady v. O'Grady, 162 Mass. 290, 38 N.E. 196. Recovery is allowed in such a case, not as an indirect way of enforcing the contract which would be contrary to sound principles, but on the ground that the refusal of the defendant to perform constitutes a failure of consideration and he is therefore bound to make the plaintiff whole for what he has got from him. It the defendant is ready to perform the fact that the contract is within the statute and he could set up the statute if he chose to is immaterial. Twomey v. Crowley, 137 Mass. 184. So is the exact nature of the undertaking on the part of the party refusing to perform; whether to hold in trust or to reconvey for instance. See Twomey v. Crowley, supra. It follows that the oral testimony in regard to the agreement to the admission of which ...