Kingsley v. Delano
| Decision Date | 21 October 1897 |
| Citation | 47 N.E. 1013,169 Mass. 285 |
| Parties | KINGSLEY v. DELANO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John B. O'Donnell, for plaintiff.
Charles G. Delano, in pro. per.
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 horse was to be charged to his account, that "that was the agreement and understanding," and that the price was to be $20. On cross-examination he said, among 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 Metc. (Mass.) 216; Goldthwaite v. Day, 149 Mass. 185, 21 N.E. 359; Dewing v. Dewing, 165 Mass. 230, 42 N.E. 1128; Whipple v. Blackington, 97 Mass. 476; Safford v. Barney, 121 Mass. 300; Eldridge v. Smith, 144 Mass. 35, 10 N.E. 717.
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 horse. 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, supra. The statute recognizes this. Pub.St. c. 197, § 8. The jury should have been directed, therefore, to deduct the price of the horse, and to return a verdict for the balance. But, if the plaintiff elects to remit the price of the horse, the verdict may stand, and the exceptions will be overruled; otherwise they will be sustained. So ordered.
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... ... current is, in effect, for the balance due.’ ... [290 Mass. 148] ... Kingsley v. Delano, 169 Mass. 285, 287, 47 N.E ... 1013. The fact that the plaintiff declares upon the items on ... one side of the account only, leaving ... ...
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