Kingsley v. Delano

47 N.E. 1013, 169 Mass. 285, 1897 Mass. LEXIS 63

Opinion

Mobton, J.

In view of the agreement of counsel and the ruling of the court, the jury must have found that there was an open and mutual account current between the plaintiff and the testator. We think that there was evidence to warrant such a finding. The plaintiff testified, on direct examination, that the mare was to be charged to his account; that “ that was the agreement and the understanding” ; and that the price was to be $20. On cross-examination he said, amongst other things, that “ it was to be applied on the account.” This, if believed and taken in connection with the other testimony, would justify a finding that there was a mutual and open account current. Penniman v. Rotch, 3 Met. 216. Whipple v. Blackington, 97 Mass. 476. Safford v. Barney, 121 Mass. 300. Eldridge v. Smith, 144 Mass. 35.

We think, however, that in one respect there was an error. The defendant declined to plead in set-off, and the jury were thereupon allowed to find a verdict for the whole amount declared on, without making any deduction for the price of the mare.

Whatever the form of the declaration, an action upon an open and mutual account current is in effect for the balance due. Penniman v. Rotch, 3 Met. 216. Goldthwait v. Day, 149 Mass. 185. Dewing v. Dewing, 165 Mass. 230. The statute recognizes this. Pub. Sts. c. 197, § 8. The jury should have been directed, therefore, to deduct the price of the mare and to return a verdict for the balance. But if the plaintiff elects to remit the price of the mare, the verdict may stand, and the exceptions will be overruled ; otherwise, they will be sustained. So ordered.