182 Mass. 482 | Mass. | 1903
After the vacation of the decree and the removal of the default in accordance with the agreement of April, 1899, the case stood for trial, but the defence had been narrowed. The respondents could no longer contest the amount due the petitioners except so far as they could show that the original sum charged was reduced by “ payments or credits.” Although the agreement is silent as to any other grounds of defence, still it is fair to assume that the only questions left open to the respondents were those respecting payments and credits. This ground of the defence, however, was fully opened to them. It is true that the question was referred in the first instance to an auditor, but it is to be noticed that he was to act only in that capacity. He was neither a referee nor an assessor. This reference was the ordinary step taken in a case involving an inquiry into accounts as a preliminary to the real trial before the court.
The auditor filed his report, in which he found that during the progress of the work various notes therein respectively designated as notes A, B, C, D, E and F were given by the respondent Wildes to the petitioners, upon the lien account; and he “ applied them as payments thereon, although he did not find that there was any agreement that they should be payment.” He further detailed quite minutely the history of these notes, in which it appeared that at the time the petition was filed note 0 had been paid by Wildes, that the other notes had been disposed of by the petitioners and at maturity had been renewed by Wildes, and that upon one or two of these renewals payments had been made by him; that all of the outstanding notes were in the hands of parties other than the petitioners, and that one of the renewal notes had been proved by the holder against the estates of Wildes in bankruptcy. The auditor having filed his report, the case stood for hearing by the court upon the questions arising thereon, being those as to payments and credits.
At this stage of the case, it was discretionary with the judge either to hear and settle the case without the aid of a jury, or to frame certain issues for trial by jury. Upon the motion of the petitioners against whom the auditor had found, and against the objection of the respondents, the judge concluded to adopt the latter course.
With these questions remaining for solution, the judge framed six issues for the jury, one as to each of the six original notes. The first question was as follows: “ Did the petitioners receive and accept in payment or part payment of their claim in suit the note of George D. Wildes, designated by the auditor’s report as note A, dated September 18,1897, for $200?” Precisely the same question was put with reference to each of the other original notes. At the time these issues were framed, the parties filed a written agreement that the auditor’s report should be considered evidence and might be read to the jury, and that all other questions except those submitted to the jury should "be tried before the judge alone. The jury answered “No ” to each of the six questions ; and a motion to set aside the verdict was overruled.
Subsequently the case came on to be further heard before the judge without a jury. The auditor’s report was read by the petitioners, and upon that report and the agreement vacating the decree, and upon the findings of the jury, they rested. There was no other evidence.
The respondents then presented several requests for rulings. Without repeating those requests in detail, it is sufficient to say that they sought thereby to-raise the question as to each of the original notes and the renewals thereof, whether, even if it was not originally given and received absolutely in part payment of their claim, still, by reason of the connection of the petitioners with its subsequent history, it should be credited on the account. The judge, however, declined to rule as requested, upon the ground, as stated by him, that the jury had “determined the issue of credits or payments which was the only question for adjudication under the agreement vacating decree of April 6,
In support of the ruling of the judge, it is urged by the petitioners that, inasmuch as the evidence at the jury trial is not before us, we cannot say that it might not have been such as to warrant the jury in finding that neither of the original notes had any relation whatever to the account in dispute, that they w'ere all given under some kind of a collateral arrangement for the accommodation of the respondents, which neither satisfied nor suspended the lien, but left the petitioners’ right intact. See McLean v. Wiley, 176 Mass. 233. It must be conceded that this is theoretically possible, but it does not seem to us to be a fair inference from the record. We do not understand that the petitioners contend that they had any account with the respondents other than the one in suit, or that there was any other obligation on the part of the latter to give notes to them except that arising out of this contract. It is also to be noted that the only questions left open after the agreement of April, 1899, were those relating to payments or credits; that the issue submitted to the jury related only to the six original notes, and were in substance whether they had been given and received in payment. The questions manifestly had reference to the original intention with which the notes were given and received, and required no examination as to the subsequent transactions except so far as they tended to throw light upon that intention. It is to be further noted that by the terms of the agreement made at the time the issues were framed, all other questions except those put to the jury should be subsequently tried by the judge; and that there were no disputed questions still unsettled except those of payments or credits.
In view of the limited nature of the language in which the issues for the jury are couched, and the provision of the agreement that the other questions should be tried by the judge, it seems to us that the fair interpretation of the proceedings is that the question between the parties with reference to these original notes was whether they were given and received as part payment of the claim at the time they passed to the petitioners, or whether they were only to be credited upon the account when, either by their payment or otherwise, the petitioners had
We are of opinion that this last question was not covered by the issues to the jury, but was left open to be dealt with by the judge if necessary, and that the ruling of the judge to the contrary was erroneous.
Exceptions sustained.