The principle of law on which this action is founded is, that if one has received money or other property as the consideration of an executory contract which cannot be enforced by reason of the statute of frauds, and if he then refuses to perform the contract, he is liable to the other party under an implied promise to return the money or pay for the property. Dix v. Marcy, 116 Mass. 416. Root v. Burt, 118 Mass. 521. Cook v. Doggett, 2 Allen, 439. Basford v. Pearson, 9 Allen, 387. Abbott v. Draper, 4 Denio, 51.
The evidence showed conclusively that the defendant had received a deed of the plaintiff’s house and land, running to a third person for his benefit, under an oral contract to convey to the plaintiff a farm of greater value, taking back a mortgage upon it for three thousand dollars to cover the difference. It was undisputed that he had neglected for a long time to make the conveyance of the farm, and that he finally sold and conveyed it to other parties, thus putting it out of his power to perform his contract with the plaintiff. The principal questions in the case are, first, whether the defendant’s conduct in selling and conveying away his farm was a breach of his oral contract with the plaintiff, which made him liable for the value of the plaintiff’s house and land as property then in his hands for which the expected consideration had failed, or whether the sale was made under an arrangement with the plaintiff which would give the plaintiff a remedy in another form; and, secondly, if the sale was made in violation of his contract, whether it was a condition precedent to the plaintiff’s right to recover that he should return all the benefits that he had received under the contract.
The defendant’s sixth, seventh, eighth, ninth, tenth, eleventh, fourteenth, and fifteenth requests for rulings relate to the first of these questions; his first, second, third, fourth, fifth, and thirteenth, to the second.
The twelfth and sixteenth requests are sufficiently answered by the proposition at the beginning of this opinion.
*146In regard to the first of these questions, the presiding judge instructed the jury, in substance, that in order to recover the plaintiff must prove that, although he had done nothing to vary the original contract, the defendant put the property out of his hands so that he could not convey it to the plaintiff, and did it without any understanding between the parties that it should be done for the plaintiff’s benefit. Under the instructions, the jury could not have returned their, verdict for the plaintiff without finding that the sale was made without his consent, in violation of the oral contract. Although the instructions were not as full as they might have been in regard to possible aspects of the evidence, we think they must have been understood by the jury as presenting the simple question, Did the defendant sell the property on his own account, without the consent of the plaintiff, while the oral contract remained unchanged ? The finding upon this issue settled the principal controversy in the case.
The second of these questions arose upon the evidence that there were articles of personal property which were to be conveyed to the plaintiff with the farm, some of which, of small value, had been appropriated by the plaintiff before the defendant had made the conveyance to the purchasers. The defendant in his argument treats the case as if the plaintiff had rescinded the contract by his voluntary act, against the will of the defendant, and invokes the familiar doctrine that one rescinding a contract for fraud or breach of warranty, and suing to recover back the consideration, must first put the defendant in statu quo. Bartlett v. Drake, 100 Mass. 174, 176. But it is the defendant who has elected not to perforin the contract, and has made it a nullity. By his own act he deprived himself of the protection of the contract as a justification for his retention of the plaintiff’s house in the hands of the person to whom it was conveyed for his benefit. He put it out of his power to turn over to the plaintiff the expected consideration, and left himself the holder of the plaintiff’s property without having given any consideration for it. The property having come into his hands in consideration of a promise which could not be enforced, and which he has repudiated, the law implies a promise to pay the fair value of it. Root v. Burt, 118 Mass. 521. Basford v. Pearson, 9 Allen, 387, 390. The right to recover this accrued to the *147plaintiff at once, and he was not obliged to restore the small articles of personal property which he had used under the contract. Of course he must account for them, but his right to sue stands upon independent grounds.
In the present case no question was raised in regard to an allowance for these articles in making up the verdict. Seemingly, they were of trifling value, but if there is dispute about them, the rights of the parties in this respect can be determined hereafter.
These are all the questions raised by the bill of exceptions. The defendant’s general exception to the charge did not direct attention to any particular part of it. It brings up for revision only those portions which were inconsistent with the instructions requested. We are of opinion that the instructions given were sufficient. Exceptions overruled.