Brackett v. Evans

Metcalf, J. 1. There is no ground for the objection of variance between the allegation and the proof of the consideration of the defendant’s promise. The special count avers that the defendant, in consideration that the plaintiff would sell and convey to him five dwelling-houses, with the land thereto belonging, promised to pay the taxes that were or should be assessed thereon for the year 1845. The alleged variance is, that the proof showed that the payment of the ■taxes was not the whole consideration of the conveyance of the houses. But the consideration of the plaintiff’s conveyance was not the same thing as the consideration of the defendant’s promise. 2. As the defendant promised to do a certain act, and railed to do it he became liable to an action for a breach of [82] his promise, without any previous demand on him. Lent v. Padelford, 10 Mass. 230. 3. The statute of frauds furnishes no defence to this action. A promise to pay the taxes, that are or may be assessed on real estate, is not a “contract for the sale of lands, tenements or hereditaments, or of any interest in or concerning the same,” within the meaning of the Rev. Sts. c. 74, $ 1. Price v. Leyburn, Gow, 109; Lowe v. Winters, 5 Cow. 263; Owen v. Estes, 5 Mass. 330; Weld v. Nichols, 17 Pick. 538. Besides; the contract is executed by the plaintiff, and the defendant has received a conveyance of the houses, on the faith of his promise to pay the taxes thereon, so that the statute would not avail him, if his promise had originally been within it. A party who receives a grant of land, on his promise to pay for it, cannot avoid payment by showing that his promise was not in writing. Pomeroy v. Winship, 12 Mass. 523; Bowers v. Bell, 20 Johns. 338; Baxter v. Gay, 14 Connect. 119; Gray v. Hill, Ry. & Mood. 420; Gow, ubi sup.; Addison on Contracts, 94, and cases there cited. 4. The other exception is sustained. The conveyance of the houses to the defendant could not legally be proved by oral testimony, unless the defendant, after notice to produce the deed, had refused to do so. On this ground alone a new trial is granted.