Delucia v. Witz

*418 Shumway, J. Out of the multitude of decisions involving the statute of frauds, no rule can be found more firmly established at the present time than this, that no action can be maintained for the direct enforcement of any agreement which is within the statute, and no damages can be recovered for its breach. Townsend v. Hargraves, 118 Mass. 325. The plaintiff alleges an agreement by the defendant to convey the real estate described, and claims damages for his refusal to perform it. On the trial to the court the plaintiff offered to prove the agreement alleged, and upon objection by the defendant that the evidence offered tended to prove by parol an agreement which by the statute of frauds should be in writing, the court sustained the objection, and the plaintiff offering no further evidence, was nonsuitéd. The plaintiff contends that the defendant is estopped from asserting that the agreement was within the statute, because otherwise the statute would be an instrument of fraud in the hands of the defendant.' There is no case cited by the plaintiff where it has been held that any party to an agreement which the law requires to be in writing has been held guilty of fraud because he insists that no action can be maintained upon such an agreement. There are many cases where the courts have held that whenever an agreement within the statute has been made and a valuable consideration has actually passed, the party parting with such consideration may maintain an action to recover it; because to permit one to retain a consideration for an agreement which is not enforceable would be a wrong, and may be likened to a fraud. Wainwright v. Talcott, 60 Conn. 43, 53, 22 Atl. 484. The plaintiff’s case, as alleged, is that when judgment foreclosing the mortgages had been rendered, the defendant stated to the plaintiff that if he would arrange to redeem the mortgages the defendant would convey *419 to him any portion of the land included in the mortgages. The plaintiff, relying on this promise, lost his right to redeem. It is apparent that the plaintiff’s loss is simply the right, to redeem and no more, and it appears from the allegations that this right was valuable. No such case is before the court. On the record, it may be that the defendant, if he has obtained an unconscionable advantage, would be estopped from asserting that his title had become absolute, if it should clearly appear that the defendant had made the promise alleged, and the plaintiff had tendered the amount due on the mortgages even after the time fixed by the court for redemption had expired. The plaintiff would thus be restored to all he has lost, even if he had lost the right to redeem by relying on the defendant’s promise. There is no error. In this opinion the other judges concurred.