This action, in its second count, is for the recov-
ery of the price of real estate sold and conveyed. As a contract for the sale of lands, it is taken out of the statute of frauds by the conveyance executed by the plaintiff and accepted by the defendant. Wetherbee v. Potter, 99 Mass. 354, 362, and cases cited.
The count sets forth an agreement by which the price of the land was to be paid in part by two notes of a third party, which the defendant agreed to guarantee. That agreement also was within the statute of frauds as a “ special promise to answer for the debt” of another. Gen. Sts. c. 105, § 1, cl. 2. But the action in this count is not brought upon that agreement. It alleges that the defendant refused to perform it on his part, and therefore that the plaintiff is entitled to recover, and the defendant owes him the balance of the price of the land. This is in accordance with a well recognized rule, of very general application, that when one has advanced the consideration, or any part of it, upon a contract within the statute of frauds, and the other refuses to perform his agreement, the first, having no remedy upon the contract itself, may recover back the consideration paid. Cook v. Doggett, 2 Allen, 439. And, if the consideration was in land conveyed, an action will lie upon the implied promise to pay its price or value. Basford v. Pearson, 9 Allen, 387, 390, and cases cited. Dix v. Marcy, 116 Mass. 416.
The refusal of the other party to perform his voidable agreement is equivalent to and may be taken as an avoidance of it. The plaintiff then stands as if no such agreement had been made. He cannot be required to accept the notes without the defendant’s guaranty, in payment for the land, because he has not *524agreed to do so. The defendant cannot insist that the price has been paid, because he has not furnished that which the plaintiff had agreed to accept as payment, or instead of payment.
The only rescission required, to enable the plaintiff to recover, is of the subordinate agreement in relation to the mode of payment of a part of the price. The principal contract of sale is not affected by the rescission or avoidance of this subordinate agreement.
There was no reason in law, therefore, why the plaintiff might not recover upon the pleadings in the case. The question whether he had accepted the notes, with the. indorsements as they were written upon them, in full satisfaction for the price of the land, was one of fact, and should have- been submitted to the jury. The verdict for the defendant, having been ordered by the court, must be Set aside.