¶1The plaintiff testified that after the farm had been appraised by arbitrators mutually chosen, and the defendant had once refused to pay the appraised value, and the parties had caused a survey to be made to ascertain the number of acres, but before the result of that survey was known, the defendant *542said he would take the farm at the appraisement; that the amount of the appraisement was ascertained by inquiry of one of the appraisers to have been $2400; and that the less sum of $2339, named as a consideration in the deed, was inserted by himself and the surveyor without any conversation with the de» fendant upon the subject.
¶2The plaintiff’s testimony, if believed by the jury, would well have warranted them in finding that the defendant agreed with the plaintiff to take the farm at the appraisement of $2400, and under that agreement accepted the deed ; that the parties never afterwards agreed upon any different price; and that the sum of $2175 paid by the defendant was not accepted by the plaintiff as a satisfaction.
¶3The plaintiff’s agreement to convey the farm, if it had not been executed by the conveyance, would have been within the statute of frauds, and could not have been enforced against him. But the defendant’s promise to pay the price of the farm conveyed to him is not within the statute. Wilkinson v. Scott, 17 Mass. 258. Preble v. Baldwin, 6 Cush. 552, and cases cited. The case should therefore have been submitted to the jury.
¶4The plaintiff will consider whether it may not be well for him, before again proceeding to trial, to move in the superior court for leave to file an additional count to his declaration, in a form to sustain his action in case the jury should be of opinion that the minds of both parties did meet and agree on the price of $2339. Exceptions sustained.