292 Mass. 434 | Mass. | 1935
This is an action on an account annexed for money lent by the plaintiff to the defendant. The only questions argued relate to the defence of the statute of limitations. The writ is dated November 30, 1934.
The plaintiff was employed by the defendant as a housekeeper. On a number of different dates from November 8,
With respect to the payment alleged to have been made .November 1, 1934, there was evidence that the plaintiff, the defendant and a niece of the plaintiff went over figures which were set out in a book, and that the niece figured the defendant’s indebtedness to be $1,824.80; that the plaintiff said the defendant owed her that sum; that the defendant said he wanted to settle his indebtedness, and that if the plaintiff would take $1,000, “they would be all set”; that “the plaintiff refused this and the defendant thereupon gave plaintiff $40 and said that if he had the money, he would pay her $5 or $10 a week”; that when the accounts were being figured' up, the defendant asked the plaintiff whether she had taken off the money he had paid for insurance, and the plaintiff said, “I’ve already deducted that”; that the defendant said it was all right to deduct the premiums, that they were to be deducted. The defendant denied this conversation and denied that he paid the plaintiff the $40, but the judge found that the conversation did take place and that the defendant did pay the $40, and further found that it “was paid ... by defendant on account of his then indebtedness of $1,824.80,” and “on account .of his admitted balance then due.”
The defendant contends that if the judge found as a fact that the defendant paid $40 on November 1, 1934, he was also obliged on the evidence to find that such payment was not an unqualified or unconditional acknowledgment of the barred portion of the debt from which a new unconditional promise to pay it is implied, but that at most any
The defendant also requested the judge to rule that “There was no mutual or open account current between the parties but merely a general account consisting of many items.” As to this, the judge found “that plaintiff wrote down contemporaneously both the amounts which she had loaned defendant and the amounts which defendant had paid for her insurance”; that “There was no evidence that defendant knew plaintiff was thus keeping accounts in the form of a mutual account”; and that there was no formal agreement which could be said to constitute a “mutual and open account current.” But the judge further found that when on November 1, 1934, the parties went over the plaintiff’s account .together, and the defendant assented to the deduction of the insurance premiums which he had paid, he “treated the matter as a current account” and “ratified the conduct of the plaintiff in keeping the account as a mutual and open account current.” The judge granted .the
In the opinion of a majority of the court it cannot be said that this error did not affect the result of the case, for we have no way of knowing whether the finding for the plaintiff for items which accrued more than six years before the date of the writ rests upon the erroneous ruling that the account became a mutual and open account current on November 1, 1934, or upon a finding which the judge could have made, but did not state, that the payment of $40 on that date gave rise to a new unconditional implied promise to pay the whole debt. John Hetherington & Sons, Ltd. v. William Firth Co. 210 Mass. 8, 17. Kaufmann v. Sydeman, 251 Mass. 210, 217. Schmoll Fils & Co. Inc. v. S. L. Agoos Tanning Co. 256 Mass. 195, 200. Rooney v. Porter-Milton Ice Co. 275 Mass. 254, 257. Rodde v. Nolan, 281 Mass. 493, 497. Minsk v. Pitaro, 284 Mass. 109, 115. Bresnick v. Heath, ante, 293. The findings that the $40 was paid on account of the defendant’s indebtedness of $1,824.80 and on account of the admitted balance then due are not equivalent to a finding of an unconditional implied promise to pay the rest of that balance, when there is evidence to the contrary. Gillingham v. Brown, 178 Mass. 417, 419.
Order dismissing report reversed.
Case to stand for a new trial.