Wheaton v. Nelson

77 Mass. 15

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1858
• Status: Published

Opinion

Thomas, J.

The court ruled rightly that the defendants were not bound to elect whether they would use the evidence of goods and moneys received by the plaintiff in payment or set-off. The defences were not inconsistent.

The court ruled rightly that the defence of accord and satisfaction was not open under the answer of the defendants.

But the admission of evidence of the negotiation in June 1855, so far as it refers to goods not mentioned in the answer, was, we think, in violation of this rule.

Whether regarded as evidence of accord and satisfaction for the balance, or evidence of payment of that balance, it is not embraced in and was not admissible under the answer. For this reason the exceptions must be sustained and a new trial had in the court of common pleas.