Vrusho v. Vrusho

Braley, J.

The record states that "the following facts were testified to by the plaintiff and admitted by the defendant.” It is unnecessary to recite them in detail. The trial judge was warranted in finding thereon that the defendant had received from the plaintiff $454.07, the amount claimed in the declaration. But the defendant, besides a general denial, had pleaded payment, and the judge expressly found, that "the plaintiff has been paid in full.” The question accordingly is, whether upon the evidence this finding was warranted.

The defendant never paid nor tendered the amount claimed. It is contended, however, that as a result of subsequent monetary dealings the debt was extinguished. A review of these transactions shows that the debts not only were separate, but unlike in character and amount although upon final adjustment a balance due from the plaintiff might be found, on conflicting evidence.

A disputed claim in set-off cannot be established under a plea of payment. The debtor must deliver to the creditor money or its equivalent in some form, accepted by him. Talcott v. Smith, 142 Mass. 542 . And, in the absence of an agreement between the parties that one debt shall offset the other, mutual indebtedness of itself is insufficient. Cary v. Bancroft, 14 Pick. 315 . Breck v. Barney, 183 Mass. 133 .

We find no error in the rulings on evidence. The letter of the defendant to the plaintiff in a foreign language, in so far as material, which, when thus offered, was excluded, was afterwards translated and the translation admitted, and the testimony of the defendant after the plaintiff had rested, as well as the evidence of counsel, who with their knowledge and acquiescence, as the judge could find, had acted for both parties in an effort to adjust their differences, also was admissible. Thompson v. Cashman, 181 Mass. 36 .

*188 The case, of course, could be tried and determined only upon the pleadings. It follows from what has been said that the refusal to give the plaintiff’s requests, that he was entitled to recover, was erroneous, and the finding that he had been paid was unwarranted.

The defendant urges that, if he should have pleaded in set-off, a new trial ought to be granted to enable him by amendment to raise this question, and that the Appellate Division had no power to order judgment for the plaintiff. While the Appellate Division, instead of ordering judgment, could have ordered a new trial, and this court can enter any order which the Appellate Division ought to have made, yet, the defendant having failed to prove payment of a debt admittedly due, cannot prevail, and no error of law appears in the reversal of the judgment in his favor or in the order of judgment for the plaintiff. Loanes v. Gast, 216 Mass. 197 . Real Property Co. Inc. v. Pitt, 230 Mass. 526 . Spevack v. Budish, 238 Mass. 215 . Newman v. Hill, 250 Mass. 578 . G. L. c. 231, § 110, as amended by St. 1922, c. 532, § 8. G. L. c. 231, §§ 134, 135. It is, Affirmed.