Long v. Woodman , 65 Me. 56 ( 1875 )

Walton, J.

Assumpsit lies to recover the price or value of

VOL. LXV. real estate conveyed. The action is of course based on a promise. But the promise need not be express ; it may be implied. If none is in fact made; oí* if the one made is within the statute of frauds, and cannot for that reason be enforced, and the grantee refuses or neglects to perform it voluntarily, the law implies one. The implied promise is to pay what the land conveyed was reasonably worth.

This action is based upon the implied promise; not because no promise was in fact made, but because the one made was within the statute of frauds, and could not be enforced, and the defendants had neglected and refused to perform it voluntarily. The right to recover, if the proof was sufficient, cannot be doubted. The case is not distinguishable in principle from Bassett v. Bassett, 55 Maine, 127; or Basford v. Pearson, 9 Allen, 387. In the latter case the principle on which the action is maintainable- is fully discussed.

The preliminary motion to dismiss the action because the costs of a former suit between the same parties had not been paid, was properly overruled. The former suit was not for the same cause of action; nor was it disposed of by nonsuit or discontinuance. The statute relied on in support of the motion does not therefore apply. E. S., c. 82, § 111.

The jury found for the plaintiff. No reason is perceived for setting the verdict aside. The rulings of the presiding judge appear to have been correct, and the evidence sufficient to justify the verdict of the jury. Motion and exceptions overruled.

Judgment on the verdict.

Dickerson, Barrows, Daneorth and Virgin, JJ., concurred.