
    Oliver Wilkinson versus Roswell Scott.
    An action lies for the grantor of land against the grantee for a part of the consideration expressed in the deed to have been paid, which the defendant, by mistake, failed in fact to secure or pay.
    This was case for the sum of 200 dollars, had and received by the defendant for the plaintiff’s use. In a second count the plaintiff declares that, on the 1st of July, 1819, he promised the defendant, at his request, to convey to him, by deed of bargain and sale, a certain parcel of land in Gill, in the county of Franklin; and that the defendant, in consideration thereof, promised the plaintiff to pay and secure to him, as the purchase money for the land, the sum of 1200 dollars, in manner following, viz., the sum of 710 dollars, 91 cents, by assigning to the plaintiff for his use certain promissory notes amounting to that sum, and for the residue of the purchase money to give his own promissory note, payable in grain at the market price, at the plaintiff’s store in Greenfield, on or before the 1st day of May, 1822, with interest; that the plaintiff made and * delivered his deed, in fulfilment [ * 250 ] of his part of the agreement, by virtue of which the defendant took possession, and became seised of the land so conveyed ; that the defendant assigned to the plaintiff certain promissory notes to the amount of 710 dollars, 91 cents, in part performance of the agreement; but did not give his own promissory note for the residue of the purchase money, but refuses so to do. In a third count, the breach is alleged to be, that the defendant, by the mere mistake and inadvertence of the parties, gave his own promissory note for the sum of 289 dollars, 9 cents, and no more; when in truth and in fact it ought to have been, and was then and there supposed to have been, for the sum of 489 dollars, 9 cents.
    The action was tried on the general issue, before Putnam, J., May term, 1820, at Greenfield. The plaintiff, to maintain the issue, proved that he made the deed on the 1st of July, 1819, the consideration expressed wherein was 1200 dollars; and that the defendant afterwards took possession of the land conveyed. He then stated that he should prove by witnesses that the defendant had agreed to pay 1200 dollars, but had paid but 1000 dollars; this suit being for the difference between those two sums. Several witnesses were examined, whose testimony had some tendency to prove that there had been such a mistake, and that the defendant was not ignorant of it. Upon the evidence so given, the judge directed a nonsuit, subject to the opinion of the whole Court.
    
      Newcomb, for the plaintiff.
    We rely upon proving by parole, that the plaintiff agreed with the defendant to sell him a farm for 1200 dollars, to be secured or paid as slated in the declaration; that the sum of 1000 dollars only was paid or secured; and that this happened by the fraud of the defendant, or the inadvertence or mistake of the parties, at the time the bargain was concluded.
    The declaration contains sufficient matter to be the foundation of an action, and to support a judgment; it alleges a [ * 251 ] promise upon a good and valid consideration, *and a breach of that promise. However slight the evidence offered was, if it was admissible, as having a tendency to prove the plaintiff’s case, it was proper for the consideration of the jury. They were the proper judges of its weight, and whether it maintained the issue for the plaintiff or not.
    Two objections to the admission of the evidence may be anticipated. 1st. From the statute of frauds. 2dly. That the evidence would tend to contradict the deed, by which the grantor acknowledges the receipt of the whole consideration expressed.
    As to the first objection, the statute of frauds does not apply to contracts, which have been performed in a substantial and material part. Contracts, under which acts have been done, which would not have been done, but with a view of carrying the contracts into effect, have been considered as out of the statute . In the case at bar, the defendant went into possession ' under his deed, which was delivered to him by the plaintiff, in performance of his part of the contract. The defendant secured 1000 dollars, as a partial performance of the agreement on his part. Possession, in pursuance of a parole agreement, is sufficient to take a contract out of the statute . It is said [1 Poivell, 304, 306] that although a specific performance of a parole agreement will not be decreed, yet if money has been paid, it will be ordered to be refunded; and even upon the payment of earnest, it has been held that an action at law might be maintained for the non-performance of a parole agreement .
    
      Mistakes in writings are as much to be relieved against, as frauds in contracts; and parole evidence is admissible for the purpose of correcting errors, and supplying fraudulent omissions .
    Courts of law will not permit the statute of frauds to be used as a shield to protect frauds. If the defendant was to pay 200 dollars more than he actually did pay or secure, it was a fraud in him not to do it; and of this the jury should have been permitted to judge Torn the evidence which the plaintiff produced.
    * With respect to the second objection, it may be [ * 252 ] ¿aid that the evidence had as much tendency to affirm as to contradict the deed. It was to prove that the sum agreed to be paid for the land was the same with that mentioned in the deed. The consideration mentioned in the deed furnishes only a legal pre sumption of what was the real consideration; and the acknowledgment that it was received, may be considered in the same light. Such presumptions may always be repelled by parole testimony. We affirm the consideration, but we deny the payment; and we trust that we are warranted in this course, by the decision of this Court in the case of Davenport vs. Mason, before referred to .
    It is respectfully suggested, on general grounds, that the nonsuit was improperly ordered in the case at bar; and that when a party, after issue joined and the cause put to the jury, is guilty of no loches, he is entitled to a verdict as a matter of right. In the case of Goodtitle vs. Bailey 
      , on a motion to set aside a nonsuit and grant a new trial, Lord Mansfield made use of the following strong language:—“ If any colorable evidence of fraud had been given, the nonsuit would have been wrong; because fraud in this case would have been matter of fact, of which the jury are to judge. So if the plaintiff could have made out a mistake, it would have been equivalent to fraud.” In the case of Watkins vs. Towers & Al. 
      , Groce and Ashurst, justices, say that they should think a nonsuit could not be entered against the consent of the plaintiff, upon the ground that the evidence offered was material to the issue; and if the plaintiff insisted upon the matter being left to the jury, they must give in their verdict, either general or special.
    Should it be objected that the plaintiff has brought his action prematurely, because the day of payment had not arrived, it may be answered, if the promise made by the defendant was valid, he failed to perform it on the day he made it; and it is not [*253] for him to say, that the *time of payment had not arrived. His promise was, to give his note for the balance when he took the deed, payable indeed at a future day; and on that condition alone he was to have the delay. Suppose no security had been given for the consideration, was the plaintiff obliged to wait four years, without any written evidence of his claim ? If the defendant would not be justified in the case supposed, it is believed he cannot in the case before the Court.
    
      Wells, for the defendant.
    We contend that the nonsuit ought to stand. 1. Because the case is within the statute of frauds. The action is “ on a contract for the sale of lands,” and thus within the letter of the statute of 1783, c. 37, § 2. The cases of Dillingham vs. Runnels 
      , and Pitts vs. Waugh Al. 
      , clearly recognize the principle, that the consideration, or agreement for the purchase money, is within the statute. In the last case, the statute is expressly stated as a valid objection against the action .
    The consideration being stated in the deed is not legal evidence that the sum agreed on was exactly the sum mentioned. An agreement signed by one party is not evidence to charge the other party . Independent of the statute, the sum mentioned in the deed ought not to be deemed even prima facie evidence of the exact amount of the purchase money. The deed is equally valid whether the true sum be mentioned or not; and the discharge, which immediately follows, renders the purchaser indifferent as to the amount stated in the deed. It is notorious that a very great proportion of the conveyances of land in the country state the amount of the consideration different from the precise sum agreed on.
    The case of Shephard vs. Little is cited to show that the statute has nothing to do with the amount and payment of the consideration. If it should be admitted that it goes that length, yet, as it is contradicted by the decisions of our own courts, it [ * 254 ] cannot be authority here. The positions of * the court also are contradictory to former decisions of the same court  ; and the case itself only determines that, where a conveyance is made in trust to account for the purchase money, an action can be maintained on a refusal to account. In New York, contracts in relation to real estate may be proved by parole 
    
    
      Authorities have also been cited, to show that a different consideration than that mentioned in the deed may be proved. But this can only be true when the action is between persons who were not parties to the original contract, and where a misstatement of a consideration affects the rights of third persons. It has been repeatedly determined, that where one consideration is stated in a deed, and nothing is stated respecting any other, no parole evidence can be received, where the action is between the contracting parties, that any other consideration was given .
    Chancery cases of part performance, such as possession, partial payment, &c., have also been cited, as proving that the plaintiff’s evidence is sufficient to take the case out of the statute. This is not a chancery case, and the want of any power, in our courts, to decree a specific performance, renders chancery decisions inapplicable here . But if applicable, they are contradictory, and the later authorities are agreed in regretting that the statute has been so much broken in upon by prior decisions. Unless when contradicted by precedents, courts of equity have of late confined their interference to cases of fraud ; fraud necessarily resulting from facts independent of parole testimony, and where a repayment of the money would not afford an adequate remedy . The cases of part performance have of late been much circumscribed ; and it is now settled, that payment of the purchase money will not take a case out of the statute  ; and if the defendant, in his answer, will admit the agreement, * but rely upon the statute, he shall [ * 255 ] have the benefit of it .
    But it is perhaps sufficient to remark, that the cases cited, if they can be considered as binding upon this Court, are not applicable to the present question. They arose upon an application' to compel the specific performance of an agreement; and the facts stated were relied upon to prove that some contract was made. In the case at bar, it is admitted that a bargain was made, and the only question is, whether the defendant has paid or secured the purchase money agreed upon. If this case were in a court of chancery, it would, it is believed, be an application to have the note, mentioned in the third count of the plaintiff’s declaration, altered from 289 to 489 dollars.
    
      In this view of the case, it is submitted, in the first place, that a court of law can afford no remedy. There is no precedent of such an action at law; and many of the chancery decisions upon the subject are, where an injunction was prayed for to prevent the party from prosecuting at law . This position is further confirmed by the numerous instances in which deeds and wills have prevailed, contrary to the provable intent of the makers.
    The case at bar shows nothing from which fraud can be inferred. The action is assumpsit, and the plaintiff, in his third count (upon which he must expect to recover, if upon any), states that the incorrectness of the sum in the note was owing to the “mere mistake and inadvertence of the parties.”
    Nor, 2dly, would a court of chancery interfere in this case. Courts of chancery never interfere where the mistake is positively denied by the defendant . Here Scott, by pleading non as sumpsit, as far as is in his power, denies that any mistake exists; and this Court will not adopt chancery decisions, and then place him in a worse situation than he would be in in a court of chancery. [ * 256 ] * Neither will courts of equity ever interfere, unless the evidence is such as to place the fact of a mistake beyond every doubt. Thus Lord Hardwiclce says, there should be the strongest proof possible . The language of Lord Thurlow is, that the evidence should be strong and irrefragable . Lord Eldon says, that the mistake should be proved as much to the satisfaction of the court, as if it were admitted .
    But independent of the statute of frauds, the plaintiff cannot recover; for before the statute, evidence could not have been received, to annul or materially to vary a written contract .
    Further, the plaintiff has, under his hand and seal, discharged the defendant from the whole amount of the purchase money. The rule, that a party shall not be received to aver against his own deed, is too well settled to require the citation of authorities.
    By the plaintiff’s own showing, the action is prematurely brought. By the second and third counts, the plaintiff alleges that a contract for the delivery of a certain quantity of grain, which was to be performed in the year 1822, was by mistake written 289 dollars instead of 489. Now, if he is correct in this statement, his remedy must be, to wait until the time of payment arrives; and then, by competent and sufficient evidence, show his right to recover for the whole amount intended to be secured. A recovery in this action would compel the defendant to pay money now, when, by the plaintiff’s own statement, he only agreed to pay grain more than two years after the commencement of the suit.
    The right of the Court to direct a nonsuit, on account of the insufficiency of the plaintiff’s evidence, has been too long settled to be drawn into question; and it is apprehended that the Court will never set aside a nonsuit, when they would have set aside a verdict found for the plaintiff upon the same evidence. In the case of Hoyt vs. * Gilman 
      , the Court refused to set [ * 257 ] aside the nonsuit ordered by the judge, although there was evidence introduced on both sides.
    
      
       15 Mass. Rep. 85, Davenport vs. Mason.—1 Comyns on Contracts, 80.—1 Powell 309.—Sugden's Law of Vendors, 72, note (7).
    
    
      
       1 Powell, 299, cites 2 Vern. 363.
    
    
      
       1 Powell, 308.
    
    
      
       2 Powell, 196, 224, 225, 226.—Roberts on Frauds, 80, &c.—Sugden’s Law of Vendors, 91, 108, 114, 117.
    
    
      
       See, also, 14 Johns. 210, Shephard vs. Little.—3 D. & E. 474, Rex vs. Ths Inhabitants of Scammonden.—7 Bro. P. C. 70, Filmer vs. Gott.—Sugden, 90
    
    
      
      
        Cowp. 597.
    
    
      
       2 D. E. 275.
    
    
      
       4 Mass. Rep. 400.
    
    
      
      
        Ibid. 426.
    
    
      
       See, also, 11 Mass. Rep. 342, Boyd vs. Stone.
      
    
    
      
      fil) 1 Eq. Ca. Abr. 21.—1 P. Will. 770, Nexoland on Contracts, 171.
    
    
      
       1 Johns. 139, Schemerhorn vs. Vanderhayden.—7 Johns. 341, Maighley vs. Hauer.
      
    
    
      
       3 Johns. 216, Foot vs. Colvin.
    
    
      
       2 P. Will. 203, Clarkson vs. Hanway.—1 Vesey, 127, Peacock vs. Monk.—1 Johns. 139.—7 Johns. 341.—3 Johns. 506, Howes vs. Barker.
      
    
    
      
       Sugden, 83.—2 Johns. 221, Jackson vs. Pierce.—1 Sch. Lef. 123, 130.—2 Poth Oblig. 19u. Evans's Ed.
      
    
    
      
       2 Poth. 196, in not.—Roberts on Frauds, 139.—Sugden, 96.—3 Ves. jun. 712, Foster vs. Hale.—1 Johns. Ch. Ca. 273, Parkhurst vs. Van Cortlandt.
      
    
    
      
       1 Sch. & Lef. 22, Clinan vs. Cooke.—Newland, 187—191 —Sugden, 91, 92.— Roberts on Frauds, IX Pref.
      
    
    
      
       2 Bro. Ch. Ca. 564 —12 Ves. jun. 466, Blagden vs. Bradbear.—Sugden, 80,81.
    
    
      
       2 Ves. 377, South Sea Company vs. D’Oliff.—1 Ch. Ca. 15.—Sugden, 127.
    
    
      
       6 Ves.jun. 328.—1 Bro. Ch. Ca. 92.—Sugden, 122, 123.
    
    
      
       1 Ves. 317, Henkle vs. Royal Exchange Insurance Company.
      
    
    
      
       1 Bro. Ch. Ca. 338, Sherburne vs. Inchiquin.
      
    
    
      
      
        Sugden, 113
    
    
      
       11 Mass. Rep. 27, Stackpole vs. Arnold.—Sugden, 100.
    
    
      
       8 Mass. Rep. 336.
    
   Parker, C. J.,

delivered the opinion of the Court.

The plaintiff was nonsuited, upon the ground that parole evidence was inadmissible to support the action; as the fact assumed to be proved, and which he wished to prove, was apparently contradictory to the deed which he .had executed; and because, by the statute oí frauds, this being a contract for the sale of lands, it cannot be proved but by writing signed by the party to be charged.

But we think neither of these objections well founded.

The case does not show an intent to contradict the deed, but merely to show a mistake in giving security for the consideration ; the effect of which was to deprive the grantor of part of the consideration. By the deed the plaintiff acknowledges that he had received the consideration, which is stated to be 1200 dollars. These formal parts of a deed receive so little attention, that to consider the acknowledgment of payment, they generally contain, ro be conclusive evidence of the fact, would be likely to do great injustice .

A man is estopped by his deed to deny that he granted or that he had a good title to the estate conveyed; but he is not bound by the consideration expressed; because that is known to be arbitrary, and is frequently different from the real consideration of the bargain. [14 Johns. 210.] It is so, we think, also with regard to the acknowledgment of payment. This always makes part of the premises, and is seldom true ; for in most cases credit for the whole, or for a part, is given. And if the grantor is to be bound by this expression, no remedy would be found for cases of error and mistake, which undoubtedly often occur. A receipt is always open to explanation; and this acknowledgment, although under seal, is nothing more than a receipt; for the seal gives it no additiona solemnity. [3 D. &f E. 474.] f * 258 ] * As to the other point, it is not a cáse within the statute of frauds ; because it is not a contract for the sale of lands. That contract was executed and finished by the deed. This is only a demand for money, arising out of that contract .

If we were called upon to say, whether the evidence, as reported by the judge, was sufficient to enable the plaintiff to recover, we should probably not hesitate to decide in the negative. But, as the evidence was legally competent, it was for the jury to pass upon it. The nonsuit therefore must be set aside, and a new trial granted ; of which the plaintiff will avail himself, or not, as he shall be advised.

New trial granted. 
      
       [It was held otherwise, and rightly, in Emery vs. Chase, 232, and Rowntret yb Jacob'sTaunt. 141.—Ed.7
     
      
      
        [Davenport vs. Mason, 15 Mass. 85.-^—Seymour vs. Bennett, 14 Mass. 266.— Pomeroy vs. Winship, 12 Mass. 514.—But see Kidder vs. Hunt, 1 Pick. 328.—Ed.]
     