Markiewicz v. Toton

• Decision Date: 25 November 1935
• Citation: 198 N.E. 659,292 Mass. 434
• Parties: MARKIEWICZ v. TOTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

292 Mass. 434

198 N.E. 659

MARKIEWICZ v. TOTON.

Supreme Judicial Court of Massachusetts, Hampden.

November 25, 1935

Action of contract by Mary Markiewicz against Joseph Toton. From an order of the Appellate Division dismissing a report by the trial judge, who found for plaintiff for $1,866.75, defendant appeals.

Reversed and case to stand for a new trial.

Appeal from Appellate Division of District Court, Western District Spooner, Judge.

H Ritter, of Chicopee, for appellant.

J. J Shapiro v. J. J. George, both of Springfield, for appellee.

QUA Justice.

This is an action on an account annexed for money lent by the plaintiff to the defendant. The only questions argued relate to the defence of the statute of limitations. The writ is dated November 30, 1934.

The plaintiff was employed by the defendant as a housekeeper. On a number of different dates from November 8, 1923, to November 2, 1933, she lent to the defendant varying sums. At various times the defendant paid, at the plaintiff's request, premiums on the plaintiff's insurance policy. The plaintiff, in her account annexed, has credited the defendant with these payments and also with two other payments, one made in 1923 and one of $40 claimed by the plaintiff to have been made November 1, 1934. The judge found for the plaintiff for the balance shown in her declaration with interest from the date of demand. It is the contention of the defendant that the statute (G. L. [Ter. Ed.] c. 260, § 2) bars recovery of all sums advanced more than six years before the date of the writ.

With respect to the payment alleged to have been made November 1, 1934, there was evidence that the plaintiff, the defendant and a niece of the plaintiff went over figures which were set out in a book, and that the niece figured the defendant's indebtedness to be $1,824.80; that the plaintiff said the defendant owed her that sum; that the defendant said he wanted to settle his indebtedness, and that if the plaintiff would take $1,000, ‘ they would be all set’ ; that ‘ the plaintiff refused this and the defendant thereupon gave plaintiff $40.00 and said that if he had the money, he would pay her five or ten dollars a week’ ; that when the accounts were being figured up, the defendant asked the plaintiff whether she had taken off the money he had paid for insurance, and the plaintiff said, ‘ I've already deducted that’ ; that the defendant said it was all right to deduct the premiums, that they were to be deducted. The defendant denied this conversation and denied that he paid the plaintiff the $40, but the judge found that the conversation did take place and that the defendant did pay the $40, and further found that it ‘ was paid * * * by defendant on account of his then indebtedness of $1,824.80,’ and ‘ on account of his admitted balance then due.’

The defendant contends that if the judge found as a fact that the defendant paid $40 on November 1, 1934, he was also obliged on the evidence to find that such payment was not an unqualified or unconditional acknowledgment of the barred portion of the debt from which a new unconditional promise to pay it is implied, but that at most any implied new promise to pay is conditioned and limited by the defendant's express statement that he would pay $5 or $10 a week, if he had the money; and that the plaintiff's rights are limited by the condition attached to the acknowledgment so that she can sue only for instalments as they come due and can recover only upon proof that the defendant had the money. Gillingham v. Brown, 178 Mass. 417, 60 N.E. 122,55 L.R.A. 320; Wenz v. Wenz, 222 Mass. 314, 321, 110 N.E. 969. But on the evidence as reported it was a question of fact whether the payment of $40 was an absolute acknowledgment of liability for the debt, with a resulting unconditional implied promise to pay, or an acknowledgment qualified by the condition that the defendant would pay in weekly instalments, if he had the money. The judge could not have given the rulings of law requested by the defendant bearing on this point. Gillingham v. Brown, 178 Mass. 417, 60 N.E. 122,55 L.R.A. 320; Wendell v. Clark, 240 Mass. 562, 566, 134 N.E. 608. It is also clear that the evidence would support a finding that the payment was an acknowledgment of all the items, all of which taken together were the subject of the conversation. Day v. Mayo, 154 Mass. 472, 474, 28 N.E. 898; Turner v. Buttrick, 272 Mass. 261, 264, 172 N.E. 246.

The defendant also requested the judge to rule that ‘ there was no mutual or open account current between the parties but merely a general account consisting of many items.’ As to this, the judge found ‘ that plaintiff wrote down contemporaneously both the amounts which she had loaned defendant and the amounts which defendant had paid for her insurance’ ; that ‘ there was no evidence that defendant knew plaintiff was thus keeping accounts in the form of a mutual account’ ; and that there was no formal agreement which...