The judge could not properly have ordered a verdict for the defendant. There was evidence that the defendant, in consideration of the plaintiff’s paroi surrender of her rights to him, and her agreement that he might foreclose his mortgage and thus become the owner of all the interest in the property, promised to pay to her the difference between $6,500 and the amount due to him upon his mortgage note, which latter amount she claimed was $3,500, but which the jury have found to be a larger amount. The contentions of the parties were fairly submitted to the jury under instructions which were sufficiently favorable to the defendant. The paper dated January 23, 1906, signed by the defendant, was on its face a memorandum of an agreement and not of a trust. If, as the jury have found, the plaintiff’s main contention was correct, the defendant’s promise was made upon a valuable consideration. It was a promise by him to pay the agreed value of her equity of redemption, which in effect she surrendered to him. Such a promise is not within the statute of frauds. Trowbridge v. Wetherbee, 11 Allen, 361. Lyman v. Lyman, 133 Mass. 414:
The fact that in charging the jury the judge called the paper already mentioned a written agreement,- and stated it's effect as such, is not now material. On his attention being called to the fact that it was declared on only as a memorandum or note of the agreement, he promptly and sufficiently corrected his error, and left it to the jury to determine, in the light of all the evidence and of the auditor’s report, what the true agreement was.
None of the defendant’s exceptions can be sustained.
Exceptions overruled.