Estabrook v. Wilcox
| Decision Date | 01 March 1917 |
| Citation | 226 Mass. 156 |
| Parties | FRANCIS S. ESTABROOK v. WILLIAM G. WILCOX. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
October 23, 1916.
Present: RUGG, C.
J., LORING, BRALEY PIERCE, & CARROLL, JJ.
Frauds, Statute of. Easement. By reason of the provision of the statute of frauds contained in R.L.c. 74,
Section 1, cl. 4 no action can be maintained for the breach of an oral agreement to lay out and construct a street on the promisor's land adjoining land which he had conveyed to the promisee, where no right of way was conveyed by or referred to in the deed of the adjoining land or shown on any plan referred to in that deed.
CONTRACT for the alleged breach of an oral agreement to open a street or way on land of the defendant adjoining land which the defendant had conveyed to the plaintiff. Writ dated October 14, 1914.
The answer contained a general denial and also alleged want of consideration and set up the statute of frauds.
In the Superior Court the case was tried before Lawton, J. The land conveyed by the defendant to the plaintiff was on the southerly side of Friendship Street, in Fall River, and it was admitted by both parties that, previous to the time of the conveyance the defendant orally had stated his intention to open up a private way at right angles with Friendship Street on the defendant's land and along the easterly side of the land proposed to be conveyed by the defendant to the plaintiff.
It also was admitted by both parties that there was no plan showing the proposed street or way, and that there was no way laid out or any evidences of a way upon the land, and that the deed did not refer to the way.
The plaintiff offered evidence, which was contradicted by the defendant that before the delivery of the deed the defendant agreed with the plaintiff that he would open a way adjacent to the tract which the plaintiff proposed to purchase, and that the plaintiff orally agreed to purchase the tract and pay the defendant's price on that condition, and that at the time of the delivery of the deed, and as a part of the consideration thereof, the defendant, while refusing to incorporate any reference to the way in the deed or to bound the defendant's land by any way, nevertheless orally agreed that he would construct a way which would be available for the plaintiff's use in connection with his land and adjacent thereto on the easterly side of the plaintiff's land.
During the direct examination of the plaintiff, he was asked the following question by his attorney: "Would you have purchased that tract of land and paid $12.50 a rod for it, if the defendant had not agreed to lay out the street?" The plaintiff was allowed to testify, against the objection and exception of the defendant, that he would not have purchased it.
At the close of the evidence the defendant asked the judge to order a verdict for the defendant. The judge refused to do this, and instructed the jury that the plaintiff could recover such damages as they might find he actually had suffered if they were satisfied that the defendant made the alleged oral agreement to lay out the way at the time the consideration was paid and the deed was delivered, or that the defendant then ratified such an oral agreement,...
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