Eaton v. Simcovitz

De Courcy, J. The plaintiff, a real estate broker, undertook to procure an exchange for a block in Springfield, owned by the defendant. He finally brought a proposition whereby the defendant would obtain three parcels of real estate and $2,000 in cash for the equity in his property. There was evidence on which the jury could find that the defendant orally agreed that if the exchange should be negotiated, he would retain the $2,000, and would deed to the plaintiff the land in question, or pay him the value of it. The plaintiff did procure the exchange. The $2,000 was paid to the defendant, and the three lots were conveyed to him. Subsequently the defendant sold and conveyed one of the lots to a third person, and the mortgages on the other two were foreclosed. At the trial there was evidence of the value of these parcels. At the conclusion of the plaintiff’s case the trial judge directed a verdict for the defendant. The sole question before us is whether the statute of frauds precludes the plaintiff from recovering on said alleged oral agreement. Admittedly the promise to convey to the plaintiff the three parcels received by the defendant could not be enforced, by reason of that statute. If the contract was an entiré one, inasmuch as part is within the statute, the contract is unenforceable as a whole, and neither party can be required to perform part. Gould v. Mansfield, 103 Mass. 408. 8 Ann. Cas. 963 note. Apparently it was not a divisible single contract, within the proper meaning of “divisible,” where on performance on one side of each of its successive divisions, the other party becomes indebted for the agreed price of the division. Williston on Contracts, § 861. Barrie v. Earle, 143 Mass. 1. Hurley v. Donovan, 182 Mass. 64. [571] In our opinion the proper interpretation of the contract, as testified to by the plaintiff, is that it was an alternative one, containing two separate promises, one of which is not within the statute of frauds. The defendant had the option to give the plaintiff a deed of the three parcels of real estate, or to pay him a certain sum of money. This payment of money was not a penalty, or liquidated damages for failure to convey the real estate. Smith v. Bergengren, 153 Mass. 236. And it could be found that he elected to be bound by the alternative to pay the money, as he voluntarily disposed of one of the lots and allowed his title to the others to be lost by the foreclosure of the mortgages on them. This alternative is not within the statute of frauds, and can be enforced. Smith v. Bergengren, supra. Standard Button Fastening Co. v. Breed, 163 Mass. 10. Glynn v. Moran, 174 Mass. 233, 236. Couch v. Meeker, 2 Conn. 302. Deverill v. Burnell, L. R. 8 C. P. 475. Mercier v. Campbell, 14 Ont. L. R. 639. Steel v. Peoples Oil & Gas Co. 147 Ill. App. 133. Missouri Edison Electric Co. v. Steinberg Hat & Fur Co. 94 Mo. App. 543. See Zwicker v. Gardner, 213 Mass. 95. As there was evidence entitling the plaintiff to go to the jury, the exceptions must be sustained; and it is So ordered.