
    John E. Milholland, Appellant, v. Daniel F. Payne, Respondent.
    Third Department,
    November 12, 1913.
    Real property—suit to compel specific performance of oral contract to convey—consideration—waiver of defense of Statute of Frauds.
    Where, in a suit for the specific performance of an oral contract of the defendant to purchase land and convey to plaintiff, it appears that the plaintiff promised to repay him the purchase price and a reasonable commission for his services, the mutual promises furnish consideration for the contract.
    The defendant having failed to plead the Statute of Frauds waived that defense.
    
      Appeal by the plaintiff, John E. Milholland, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Essex on the 17th day of October, 1912, upon the decision of the court after a trial at the Essex Special Term.
    
      Adelbert W. Boynton [Edgar T. Brackett of counsel], for the appellant.
    
      Smith & Wickes [Francis A. Smith of counsel], for the respondent.
   Smith, P. J.:

The action is brought in equity to compel the defendant to deed to the plaintiff certain land theretofore purchased by the defendant on the ground that the defendant had agreed to purchase the same for the plaintiff, and upon the promise of the defendant to make such conveyance to plaintiff. The case was tried before the court without a jury. The court refused to make findings of fact, but dismissed the complaint on two grounds; one, that the contract under which plaintiff claimed was void by the Statute of Frauds, and the other that it was without consideration.

I cannot agree with the learned trial judge that the contract was without consideration. It might have been found from the evidence that the defendant agreed to purchase the land and convey to plaintiff in consideration of the promise of the plaintiff to pay him the moneys which he paid therefor and a reasonable commission for his services. These mutual promises furnish consideration one for the other, and if the plaintiff is to be denied the right to recover, such denial must rest upon the invalidity of the contract as made void by the Statute of Frauds. The trial judge rested his decision as to the invalidity of the contract upon the case of Wheeler v. Reynolds (66 N. Y. 235). That case would seem to authorize the judgment made if the defendant were in a position to avail himself of the objection of the invalidity of the contract. It is now settled law that a failure to plead the Statute of Frauds precludes the party from claiming the invalidity of an oral contract thereunder. (Crane v. Powell, 139 N. Y. 379; Matthews v. Matthews, 154 id. 288.) It would appear then that under a contract for a valuable consideration the defendant promised to purchase this land for the plaintiff, and convey to him, and, defendant having waived the defense of the Statute of Frauds, plaintiff was entitled to enforce the contract.

The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

All concurred.

Judgment reversed and new .trial granted, with costs to appellant to abide event.  