¶1 According to the finding of the judge upon the trial, the defendant, believing the representations which had been made to him by the plaintiff, that the real estate which the plaintiff had contracted to purchase of Eobinson had cost the plaintiff $6,000, verbally agreed with the plaintiff that he would take the same and pay therefor the price aforesaid, then believing the price the plaintiff was to pay said Eobinson to be $6,000.
¶2 ’ The defendant subsequently ascertained that the price was *47 $5,250, and with plaintiff’s consent Robinson conveyed the premises to the defendant who paid the last mentioned sum to Robinson. Assuming that the contract between the plaintiff and the defendant was'originally a valid one, when the defendant ascertained that the price which the plaintiff was to pay had been misrepresented he was exonerated from any obligation to fulfill his contract, and would have been fully justified in repudiating the same. The false representations made would have been an ample excuse for his non-performance. While such was the case the defendant could not avail himself of these false representations to excuse the payment of the price agreed upon if he took the conveyance, and as he chose to carry the contract into execution, he was bound to pay the plaintiff the balance of the consideration money. If the contract had been in writing and the plaintiff had brought an action to compel a specific performance upon defendant refusing to fulfil], the false representations would have been a complete defence. But after the defendant had taken the deed it would not rest with him to refuse to perform by paying the price agreed upon. He could not reap the fruits of the bargain by taking the property, thus fulfilling in part, and then repudiate the performance of the obligation to pay into which he had entered. Such a course would, under the contract, be advantageous only to one of the contracting parties and cannot lawfully be upheld.
¶3 It is to be presumed that the deed was delivered to the defendant in accordance with the agreement proved, and although the judge did not find that fact specifically, the findings show that such must have been the case. Ho other agreement was found to have been proven, and it is fairly to be inferred from the facts that the contract proved was fulfilled by the conveyance to the defendant. Ho other legitimate conclusion can be arrived at, and such being the case it was not necessary to prove a promise to pay the plaintiff the amount claimed when the deed was delivered. The promise to pay was comprehended in the agreement, and it maybe inferred from the very fact that the deed was accepted *48 by the defendant. These observations lead to the conclusion that the judge was wrong in dismissing the complaint, and the judgment must be reversed and a new trial granted, with costs to abide the event.
¶4 All concur; except Church, Ch. J., not voting.
¶5 Judgment reversed.