As the pleadings stood when the verdict for $500 and interest was ordered, the parties both alleged that on March 23, 1903, they had an accounting together and a mutual settlement of the demands in suit and found the sum of $500 to be due from the defendant to the plaintiffs and that the defendant then promised to pay that sum. It is difficult to see how either party could contradict what both had alleged in pleading. See Snowling v. Plummer Granite Co. 108 Mass. 100, 101. There was no allegation in pleading on the part of the plaintiffs that this mutual settlement was void for fraud on the part of the defendant, nor does the report show that such a contention was made at the trial. The case was submitted on the pleadings and the auditor’s report with the agreement that the presiding judge might order a verdict for the amount of the sum agreed between *564the parties on March 23, 1903, with interest, or for the amount of $2,317.97, which represented the whole demand sued for, with interest. The auditor’s report set forth a detailed statement of the interview of March 23, 1903, which the auditor’s report states as the testimony before him of one of the plaintiffs. That evidence tends 'to show that the parties agreed upon a settlement by the payment of the sum of $500 by the defendant to the plaintiffs and the passing of receipts.
When that sum was proposed the defendant said he would give a check on the spot, and there is no doubt that the plaintiffs expected him to make payment in that way when they acceded to a settlement for that sum. Because neither party had a blank check on the defendant’s bank he did not give a check on the spot. But the evidence tended to show also that for a number of days thereafter the plaintiffs expected to receive the check and that the defendant made other promises to send it, and that four days before suing out the writ the plaintiffs notified the defendant that unless they received the check by a certain day they would sue.
Upon the terms of the report we think the verdict must stand unless as matter of law the presiding judge was bound to order a verdict for the larger sum, or unless, in other words, the evidence showed conclusively that the settlement was a conditional one, or that the defendant procured it by fraud. In our opinion it cannot be ruled upon the evidence, as matter of law, either that the settlement was conditional, or that the defendant procured it by a fraudulent promise to give a check on the spot.
Judgment on the verdict.