Ryder v. Warren , 295 Mass. 24 ( 1936 )

Lummus, J.

The plaintiff was the wife of a former owner of land in Brockton which was taken by the Federal government. by eminent domain. Never having released her inchoate right of dower, she made claim for compensation. See Flynn v. Flynn, 171 Mass. 312. The defendant, as her attorney at law, with her consent, on January 5, 1933, received $3,500 in compromise of her claim.

On December 26, 1934, she brought this action of contract to recover a balance of $2,550, computed by deducting from $3,500 payments to her of $450 and by allowing to the defendant a fee of $500. He answered that he had paid the plaintiff in full, but that “if he ever received the sum of” $3,500 he owed a balance of only $1,700 after deducting $1,800 which he claimed to have deducted for services and expenses under written authority from the plaintiff. To cover the balance of $1,700 just mentioned, the defendant filed a declaration in set-off for $450 as money lent (apparently the same amount admitted by the plaintiff as payments), and for $3,750 (less payments of $304) as rent.

The trial judge found that the defendant was entitled to a fee for services and expenses as an attorney of only $1,000. The judge could make that finding even though no witness appraised the value of such services and expenses at that particular amount. Piper v. Childs, 290 Mass. 560, 563. He could find as he did that the written consent of the plaintiff to the retention by the defendant of $1,800 for services and expenses did not bind the plaintiff, under the doctrine of Lanigan v. Scharton, 238 Mass. 468.

Of the balance of $2,500, the judge found that the defendant had paid to the plaintiff $480.70, leaving $2,019.30 to be accounted for. He ruled that set-off was not possible, because the plaintiff’s claim was unliquidated. Nevertheless the judge found that the plaintiff agreed to pay rent only when and as she could earn it by using her tenement as a lodging house, and that she had paid all the rent that had become due. These findings the judge made “to take effect only in case I am in error in ruling that defendant is not entitled to pursue a set-off in this action, and for no other purpose.” On the whole case the judge “disallowed” the set-off (Tracey v. Grant, 137 Mass. 181, 182), and found for the plaintiff on her declaration for $2,029.30. This is evidently a clerical error, the correct amount being $2,019.30, but no complaint is made of the amount. The Appellate Division sustained the judge, and the defendant appealed.

The merits of the defendant’s claim for rent appear to have been fully tried and determined, although the judge preferred to put his denial of set-off on the technical ground that there could be no set-off against a claim of the sort made by the plaintiff. If that technical ground should fail, the finding against the merits of the defendant’s claim was to have effect. The set-off was not, as the defendant contends, put “definitely out of the case” by the ruling of the judge. It was dealt with by an alternative finding. G. L. (Ter. Ed.) c. 231, § 124. That alternative finding that there was no merit in the defendant’s claim took effect and must control, for the judge was in error in ruling that there could be no set-off against the plaintiff’s claim. The correct result is not to be set aside because the judge reached it by error which can be corrected upon the record. Nickerson v. Allen, 293 Mass. 136, 138, and cases cited. The plaintiff’s claim was for money had and received to her use, with a deduction of what she asserted that she owed the defendant as the fair value of his services and expenses. We assume without deciding that her claim, dependent as it was upon a determination of value, was properly classed as unliquidated. McGrimley v. Hill, 232 Mass. 462. Cochrane v. Forbes, 267 Mass. 417, 420, 421. Graustein v. H. P. Hood & Sons, Inc. 293 Mass. 207, 222.

To permit set-off, G. L. (Ter. Ed.) c. 232, § 1, requires that each claim shall be “upon a judgment or upon a contract, express or implied, for property sold, for money paid, for money had and received, for services performed and for an amount which is liquidated or may be ascertained by calculation.” This section is a condensation, first contained in R. L. (1902) c. 174, § 1, of provisions first appearing in full in Rev. Sts. (1836) c. 96, §§ 1-5, 7. Before 1836, any demand for money had and received, “for goods delivered, monies paid, or services done” was a subject of set-off. St. 1784, c. 28. St. 1793, c. 75. Witter v. Witter, 10 Mass. 223. Richards v. Blood, 17 Mass. 66. Truesdell v. Wallis, 4 Pick. 63. But various classes of liquidated claims were incapable of set-off. Stowers v. Barnard, 15 Pick. 221, 223, 224. In that case, decided in 1834, Shaw, C.J., said, “It seems certainly somewhat remarkable, that a provision of this kind, founded upon equitable principles, and intended to prevent circuity of action, should exclude demands for settled and liquidated debts, as those due on judgment or specialty, and extend so as to embrace unliquidated demands for goods and services.” The commissioners who prepared the Revised Statutes of 1836 sought to remove this anomaly.

Rev. Sts. (1836) c. 96, §§ 2, 3, made provision for set-off not only of judgment debts, but also of claims liquidated or ascertainable by calculation. The provision for the latter class of claims “was intended to cover an additional class of claims, and not as a proviso of further limitation.” Blackler v. Boott, 114 Mass. 24, 27. Manufacturers’ Finance Corp. v. Vye-Neill Co. 62 Fed. (2d) 625, 631. See also Ford v. Burchard, 130 Mass. 424; Allen v. Edwards, 136 Mass. 138, 142; Gannon v. Ruffin, 151 Mass. 204. The language of the present statute, apart from its history, is not altogether clear. But its history, and its interpretation in Blackler v. Boott, 114 Mass. 24, show that a claim “for property sold,, for money paid, for money had and received, [or] for services performed” need not be liquidated or ascertainable by calculation in order to be within the statute as to set-off. The claim of the plaintiff, as well as that of the defendant, was within that statute.

The statement in Taft v. Larkin, 123 Mass. 598, 600, that “A demand for money paid cannot be set off unless for a sum liquidated, or one that can be ascertained by calculation,” appears unnecessary to the decision of that case. Apparently Blackler v. Boott, 114 Mass. 24, was overlooked. Statements in other opinions, to the effect that set-off is restricted to liquidated demands, must be applied to the cases in which such statements were made, and not taken as universally true. Soares v. Weitzman, 281 Mass. 409, 411. Tegelaar Brothers, Inc. v. Hanflig, 286 Mass. 363, 366.

Nothing in the requests for rulings requires further discussion.

Order dismissing report affirmed.