222 Mass. 314 | Mass. | 1916
The verdict in this case is for money lent by the plaintiff to his brother, the defendant, in 1897 and 1898. The exceptions relate to the issues raised by the answers of payment and the statute of limitations.
1. The offer of evidence to show the value of the estate of their father properly was excluded. Even if we disregard the purpose and legal effect of the agreement by which the defendant waived his claim of inheritance, and of the declaration signed by his brothers and sisters acknowledging his equal inheritance rights notwithstanding the waiver, the offer did not purport to show that the plaintiff ever received from the estate any money to which the defendant was entitled except the legacy of three hundred gulden; and this he directed the plaintiff to keep on account of the loan. If the defendant had a further and unliquidated claim against the plaintiff, growing out of the joint executory contract, it could not be litigated in this action, under a plea of payment. See Borden v. Sackett, 113 Mass. 214.
The letter of the plaintiff dated March 30 was rightly excluded for the same reason, and for the further reason that it added nothing to the declaration already in evidence.
3. The plaintiff testified that on November 16, 1911, the year after he had come to Boston, he received from the defendant a payment on account of the debt amounting to $122.40. From the testimony, and the statement of November 16, 1911, signed by the defendant, it appears to have been an unconditional payment on account of this debt. As such it was sufficient to take the debt out of the statute of limitations, irrespective of the acknowledgments in writing already referred to. Gillingham v. Brown, ubi supra. If the letter of January 14, 1907, referred to the same
It follows that all the exceptions taken by the defendant must be overruled.
So ordered.