McNulty v. Cruff

Hammond, J. If, as the result of the conversation which took place on August 10 between the plaintiff and the defendant in the presence of Hazard, there was an understanding between the three that the defendant, in consideration of work to be done by the plaintiff, should pay the plaintiff what Hazard had agreed to pay him and the plaintiff accepted the defendant as his debtor in the place of Hazard, then the promise was not within the statute of frauds and the plaintiff, having done the work promised, may hold the defendant. Trudeau v. Poutre, 165 Mass. 81. Paul v. Wilbur, 189 Mass. 48, and cases cited. The defendant, conceding this, strenuously insists that there is no evidence of such an understanding. On this the case is close. Considering however the conversation itself, the circumstances under which it was held and the evidence as to the subsequent conduct of the parties, we are constrained to say that, brief and meagre as is the evidence, the plaintiff had a right to go to the jury on the question whether such an understanding was reached. Exceptions sustained.