Barnes v. Loomis

• Decision Date: 21 October 1908
• Citation: 85 N.E. 862,199 Mass. 578
• Parties: BARNES v. LOOMIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

199 Mass. 578

85 N.E. 862

BARNES v. LOOMIS.

Supreme Judicial Court of Massachusetts, Hampden.

Oct, 21, 1908

Plaintiff sued defendant for 110 ties at 52 cents each. Defendant answered by general denial, payment in full, and also a set-off that plaintiff owed defendant $359.12 according to an annexed account. As follows:

Account in Set-Off. Vincent E. Barnes to George W. Loomis Dr. 1904. April 4. To cash paid Eastman & Maxwell, for cutting logs on Stowe lot ................. $205 26 Nov. 29. To cash paid to Smith & Hunter, for drawing logs on Stowe ...................... 307 76 To costs and expenses incurred at the plaintiff's request ........................ 70 04 ------- Total ....................... $583 06 1901. Credits. Dec. 5. By check for labor on Stowe lot $189 64 1902. Dec. 17. By cash for labor on Stowe lot ............................. 5 27 Dec. 19. By cash for labor on Stowe lot ............................ 29 03 ------- $223 94 Balance due ................ $359 12

To which the plaintiff made answer in replication as follows:

'And now comes Vincent E. Barnes, the plaintiff, in the above entitled action, and makes replication and answer to the defendant's answer and account to set-off, and says that he denies each and every material allegation of charges contained in the defendant's answer and declaration or account in set-off.

'(2) And the plaintiff further specially answers and says that the account in set-off does not conform to the provisions made and contained in the 173d chapter of the Revised Laws of this commonwealth.

'(3) The plaintiff specially answers further and says that the item in the account that reads: 'April 4, 1904. To cash paid Eastman & Maxwell for cutting logs on Stowe lot, $205.26'--and the item of charge dated November 29th, to cash paid to Smith & Hunter for drawing logs on the Stowe lot, $307.76, are not supported or based on any writing or copy of any writing or memorandum signed by the plaintiff or any person authorized to sign any writing by him for the plaintiff, and are, therefore, against the statutes of frauds as made and provided and contained in the Revised Laws of this commonwealth, and therefore the plaintiff pleads the statute of frauds.

'(4) And the plaintiff further specially answers and says that the item of charge in the defendant's account in set-off which reads, to costs and expenses incurred, at the plaintiff's request $70.04, is not supported by writing, or based upon any writing or memorandum signed by the plaintiff or any person authorized to sign by him to sign a written instrument for him, or a copy of an alleged writing or memorandum, and is therefore against the provisions made and provided and contained in the Revised Laws of this commonwealth, and therefore the plaintiff pleads the statute of frauds.

'(5) And the plaintiff further answers and says that the items of credit made to him by the defendant amounting to $223.94, were made upon a written contract signed by the plaintiff, and that the plaintiff does not hold or have a copy of, and that written contract stipulated in substance that the plaintiff should pay to George W. Loomis, 90 cents per M for cutting of a certain lot of logs then cut, and $1.00 per M for the logs then drawn into a mill-site on the land of Mrs. M. V. Stowe, in Granville, and the amount was to be determined by the lumber that was sawed out of the logs, and the writing was dated about May, 1901. And the payments made by the plaintiff to the defendant and are credited to the plaintiff, were made in full payment of said written contract, which is held by the defendant.'

COUNSEL

Vincent E. Barnes, pro se.

OPINION

MORTON J.

This is an action of contract to recover of the defendant the value of 110 sleepers or ties at 52 cents each, amounting to $57.20. The answer was a general denial and payment. The defendant also filed a declaration in set-off. At the trial the defendant relied upon his plea of payment and the declaration in set-off which was upon an account annexed, the first two items of which were for cash paid for cutting and drawing logs on the 'Stowe lot,' and the third for 'costs and expenses incurred at the plaintiff's request.' The remaining items consisted of credits for cash received from the plaintiff for labor on the 'Stowe lot.' At the close of the evidence the court, at the plaintiff's request, ruled that the defendant was not entitled to recover upon the first two items in the declaration in set-off, but refused to rule as requested by the plaintiff that the defendant was not entitled to recover upon the third item. The jury found for the defendant on this...