O'grady v. O'grady
| Decision Date | 19 October 1894 |
| Parties | O'GRADY v. O'GRADY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
The petition was in two counts. The first count alleged that the plaintiff conveyed to the defendant said real estate, subject to said mortgage, and that in consideration thereof the defendant agreed to pay off said mortgage, and sell said real estate for the benefit of the plaintiff, and pay over to her the proceeds, less the amount paid by the defendant on said mortgage, and, in case the defendant could not sell said real estate, to pay the plaintiff the market value thereof; that conformably to said agreement the defendant did pay off said mortgage, but though requested by the plaintiff, he refused to sell said real estate for her benefit, or pay her therefor, wherefore the defendant owes the plaintiff the value thereof, and interest from the date of demand. The second count was an account annexed for the sum of $2,400, as follows:
| Timo. O'Grady, to real estate in Monson | $2,800 |
| By amount paid on mortgage | 400 |
| ------ | |
| $2,400 |
The answer contained a general denial, set up the statute of frauds, and also want of consideration. There was evidence that defendant had agreed to pay certain other debts, which was relied on to show a variance between the evidence and the contract alleged.
W.B. Stone, for plaintiff.
C.L. Gardner, for defendant.
The jury were instructed to return a verdict for the defendant if they found that any debt except the mortgage debt was to be deducted from the value of the premises. They returned a verdict for the plaintiff, and therefore must have found that the mortgage debt was the only one to be deducted. On her direct examination the plaintiff's testimony tended to show that the agreement was as stated in the declaration. On her cross-examination she said some things which seemed to be inconsistent with her direct testimony. The jury may have found, however, that the inconsistencies were only apparent and not real, and were due to mistake and misunderstanding on her part. The testimony of the witness Haley also tended to show that the contract was as set out in the declaration. It was for the jury to say, upon the whole case, what the contract was, and we think that there was evidence that justified their verdict. We do not understand the defendant seriously to contend that the statute of...
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