Rosenberg v. Drooker

Carroll, J. The plaintiff, the owner of a certain parcel of real estate in Boston, had contracted to convey to one Wallace a one half interest in the same. The defendants were the holders of a second mortgage on the premises, which they were about to foreclose. There was evidence of an oral contract between the plaintiff and defendants that, if the plaintiff would discharge the agreement to sell to Wallace and not “appear when the foreclosure is going to take place,” and “not bid in the property, and I [one of the defendants] will sell the property to Wallace,” the defendants would pay the plaintiff $425; that he discharged the Wallace agreement and did not appear at the foreclosure sale. The answer was a general denial, payment, and the statute of frauds. The jury found for the plaintiff. [207] The plaintiff cancelled and discharged the agreement with Wallace and refrained from attending the foreclosure sale. “This is not an action to enforce an oral contract for the sale of land or an interest in and concerning the same. The land has been sold and nothing remains to be done except for the defendants to account for and pay over the excess.” Zwicker v. Gardner, 213 Mass. 95, 96. The promise to pay the money was separable from the part of the contract relating to the sale of the land, and as that part has been executed and nothing remains except the payment of the agreed sum, the statute of frauds is not a defence. Zwicker v. Gardner, supra. Chace v. Gardner, 228 Mass. 533, and cases cited. See Bailey v. Wood, 211 Mass. 37. The defendants asked the judge to instruct the jury “That unless the jury finds as a fact that the plaintiff waived his customer and that his customer and he released each other from the agreement in evidence because of the alleged promise to the plaintiff, the plaintiff cannot recover.” They contend there is nothing to show that Wallace released the plaintiff from the contract to sell. The jury could have found that the plaintiff did not agree to secure the release of Wallace, but merely to discharge the plaintiff’s rights under the contract against Wallace; and there was evidence that this was done. The defendants now argue that the plaintiff’s action is upon an alleged right to recover “vested in the plaintiff on July 1, 1916;” and that the demand then made was premature because the property was not sold at foreclosure until July 17, 1916. Without admitting that there is merit in the contention, it is enough to say that no exception was taken on this point in the trial court and the presiding judge was not asked to pass upon it. It is not now open to the defendants. Exceptions overruled.