The opinion of the court was- delivered by
Royce, J.
This was an action of general assumpsit, plea,, the general issue, and was heard upon the report of a referee. The report is in the alternative, and the only question' is, for which sum the court should have rendered judgment. The defendant had charged the items specified in the report on book, and claimed said items should be allowed as payment, and rested his claim *70upon no other ground. The plaintiff objected to the referee’s receiving any evidence in support of said items, or to their being allowed in offset or as payment, because no plea in offset, or plea or notice of payment had been filed. The referee found from the evidence thus objected to, that said items should be allowed the defendant “ if not prevented because of the pleadings.” If he had reported that he found that such items were intended and understood to go in payment of the plaintiff’s claim, the question would be free from embarrassment, because payment may be given in evidence under the general issue in assumpsit. 1 Chit. Pl. 472, and cases cited; Britton v. Bishop et al. 11 Vt. 70. But the finding by the referee, taken in connection with the claim made by the defendant when the items were presented, we think is equivalent to .an express finding by him that they were a payment in fact of a portion of the plaintiff’s claims. The judgment is reversed, and judgment rendered for plaintiff on the report for $17.65, and interest from the first day of September, 1875.