Cousbelis v. Alexander

The defendant declared in set-off for breach of a contract to buy real estate. The district court judge made a finding for the defendant. The Appellate Division vacated the finding and ordered judgment for the plaintiff. The defendant appealed.

Whether the defendant’s cause of action is properly one *730for set-off (see Ryder v. Warren, 295 Mass. 24) is not before us. No point of pleading was raised before the trial judge. See Botti v. Venice Grocery Co. 309 Mass. 450, 458.

The only question is the sufficiency of a memorandum under the statute of frauds (here G. L. [Ter. Ed.] c. 259, § 1, Fourth).…