This case is before us on the plaintiff's appeal pursuant to G. L. c. 30A, Section 15, as appearing in St. 1973, c. 1114, Section 3, from the judgment entered in the Superior Court affirming the contributory retirement appeal board's (appeal board) decision with respect to the plaintiff's application for accidental disability retirement and dismissing the action. We conclude that the appeal board's decision is neither unsupported by substantial evidence (see McCarthy v. Contributory Retirement Appeal Bd., 342 Mass. 45 , 47 & n.2 ; G. L. c. 30A, Section 1 ), nor vitiated by error of law. 1. We need discuss only the question whether the issue of disability was before the appeal board at the time of the evidentiary hearing. Following a careful review of the transcript at that hearing, we agree with the Superior Court judge that the appeal board "did not exclude from its consideration at the evidentiary hearing the so-called medical issue." See Bond v. Commissioner of Pub. Safety, 1 Mass. App. Ct. 536 , 539 (1973). The evidence before the appeal board consisted of (1) the findings of the medical panel made under G. L. c. 32, Section 6 (see Shrewsbury Retirement Bd. v. Contributory Retirement Appeal Bd., 5 Mass. App. Ct. 379 , 380-381 , and cases cited), with a letter from the panel's chairman attached, and (2) the plaintiff's testimony relative to his present ability to perform both the job from which he was allegedly disabled and another full-time job with the Alcoholic Beverages Control Commission. It is to be noted that this latter evidence came in without objection. 2. We agree with the manner in which the judge disposed of the other issues raised by the plaintiff's application for retirement benefits.
One of the questions raised by the plaintiff's appeal from the final judgment is as to the propriety of the order denying the plaintiff's motion for summary judgment in its entirety. See the second paragraph of Mass.R.A.P. 3(a), 365 Mass. 846 (1974). For the purposes of that motion it was established by the defendant's answers to interrogatories Nos. 3 through 8, 10, 11 and 19 and by pars. 2, 3 and 5 of the Gennaco affidavit that the plaintiff, as Gennaco's trustee in bankruptcy, had title to the unaltered promissory note declared on, that the defendant had executed and delivered the note to Gennaco for good consideration, that the defendant had defaulted on the note, and that the only disputed questions of fact were as to the amount still due in accordance with the terms of the note. It was clear from the defendant's answer to interrogatory No. 13 and from his affidavit in opposition to the motion that the "counterclaim" referred to in the amended answer was comprised of a variety of claims for damages (which may
not even have belonged to the defendant) for allegedly wrongful acts which had been committed by Gennaco acting in his capacity as a fiduciary and not in his individual capacity. As those claims and the ones asserted by the plaintiff were not "mutual debts or mutual credits" within the meaning of 11 U.S.C. Section 108(a) (1970), the defendant's claims could not be set off in the present action. In re Bob Richards Chrysler-Plymouth Corp., 473 F.2d 262, 265 (9th Cir.), cert. denied sub nom. Western Dealer Management, Inc. v. England, 412 U.S. 919 (1973). 4 Collier, Bankruptcy par. 68.04[2.1] and  and par. 68.05 (14th ed. 1978). See also Putnam v. Handy, 251 Mass. 196 , 197 (1925). Accordingly, an order should have been entered under Mass.R.Civ.P. 56(d), 365 Mass. 824 (1974), to the effect that the defendant was liable to the plaintiff in accordance with the terms of the note and without regard to the "counterclaim," and that the only disputed questions of fact which were to be submitted to and decided by a jury were as to the amounts still due in accordance with the terms of the note. The judgment is reversed, and the case is remanded to the Superior Court Department for further proceedings consistent with this opinion.