Ramsdell

Appeal from a judgment entered against defendant and from an order denying his motion for a new trial.

In the year 1910 defendant had bargained for the purchase of a certain thirteen unsurveyed lots then owned by one Clark, and as evidence of his right to such property had received the following writing:

At the same time plaintiff was the owner of an equitable interest in certain real estate for which she had paid about the sum of two thousand five hundred dollars. This equitable interest she agreed to exchange with defendant for the rights which he had acquired in the lots first mentioned, and the exchange was effected. In consummating the deal, plaintiff was taken by defendant into the presence of Clark and a new receipt was executed by Clark in favor of the plaintiff, which was identical in terms with that above set out except that plaintiff’s name was inserted instead of the name of the defendant. Plaintiff was informed at the time that the lots had not been surveyed. The lots were never surveyed and deed was never delivered to the plaintiff, notwithstanding her demand therefor, which demand was made upon Raymond; and it appears that at the time of the transaction an…