SALEM RIZKALLA vs. SALEM ABUSAMRA.

CROSBY, J. This is an action of contract in which the plaintiff seeks to recover $2,000 and interest on an alleged accounting between the defendant and the plaintiff's assignor, one Elias Ghiz. The declaration is upon an account annexed, which sets forth "Sum agreed upon after accounting" $2,000, interest $280, making a total of $2,280. The answer was a general denial and payment. An amended answer pleaded the statute of frauds, G. L. (Ter. Ed.) c. 106,§ 6, and G. L. (Ter. Ed.) c. 259,§ 1, as a defence.

At the trial there was evidence tending to show that Ghiz, the assignor of the plaintiff, and the defendant had dealings before September 9, 1931; that as a result thereof there was a dispute as to whether anything was owed by the defendant to Ghiz; that on or about September 9, 1931, the defendant and Ghiz met at an attorney's office and after discussion the defendant orally agreed, in settlement, to assign to Ghiz a certain mortgage upon which there was due a balance of $1,400, and to deliver to Ghiz the defendant's note for the sum of $600 payable in one year; that agreements in writing were to be prepared and executed; that at said meeting the disputed claim was compromised for $2,000 and it was agreed that it be paid as above stated; and that the contract never was carried out. It is agreed by the parties that an assignment from Ghiz to the plaintiff was

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valid; that no agreement in writing was made in the office of the attorney - there was only an oral agreement between the parties. The trial judge found that the defendant by said agreement acknowledged that he owed Ghiz the sum of $2,000 and that no part thereof had been paid by the defendant. At the close of the trial the defendant made seven requests for rulings, all of which the judge refused to give on the ground that they were not applicable, as the case was "not ... an action to enforce the assignment of any mortgage nor to compel the plaintiff [defendant?] to give a note, but . . . [was an action] for money due upon an accounting." He found for the plaintiff and reported the case to the Appellate Division.

The Appellate Division rightly ruled that the first three requests of the defendant were for findings of fact and that the fourth, fifth and sixth requests were not applicable, as the action is brought to recover money due on an accounting and not to enforce the assignment of the mortgage nor to compel the giving of a note. The seventh request that the action should be dismissed and judgment rendered for the defendant could not properly have been given as it in effect is a request for a ruling upon all the evidence and does not comply with Rule 27 of the District Courts (1932) the grounds upon which the request is based not being specified. The Appellate Division found that there was no prejudicial error in the refusal of the trial judge to rule as requested or in the rulings made and ordered the report dismissed.

This is an action to recover upon an account stated and must be founded on previous transactions of a monetary character creating the relation of debtor and creditor. Tucker v. Columbian National Life Ins. Co. 232 Mass. 224, 229. It is stated in the report in the present case that the evidence tended to show that Ghiz, the plaintiff's assignor, and the defendant had some dealings before September 9, 1931, as a result of which there was a dispute whether money was owed by the defendant to Ghiz, and it was orally agreed that, in settlement, a certain mortgage for $1,400 should be assigned by the defendant to Ghiz and that the defendant

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should also deliver his note for $600 to him. From this evidence a finding was warranted that the account stated was founded on previous transactions of a monetary character which created a relation of debtor and creditor. The finding of the trial judge that at the meeting between the defendant and Ghiz, the plaintiff's assignor, the defendant acknowledged that he owed Ghiz $2,000 renders the defendant liable under an implied contract to pay the indebtedness. "An 'account stated' is an acknowledgment of the existing condition of liability between the parties. From it the law implies a promise to pay whatever balance is thus acknowledged to be due. It thereby becomes a new and independent cause of action, so far as that a recovery may be had upon it without setting forth or proving the separate items of liability from which the balance results." Chace v. Trafford, 116 Mass. 529, 532. "An accounting together is not the creation of a new debt. It is a new statement and acknowledgment of an old debt, from which a promise to pay is implied sufficient to maintain an action, but not to discharge the old debt, or bar an action upon it in its original form." Buxton v. Edwards, 134 Mass. 567, 578. See Braman v. Foss, 204 Mass. 404, 411, 412; Millen v. Williams, 210 Mass. 516, 519, 520. The trial judge rightly ruled that the action was not brought to compel the assignment of the mortgage or to compel the defendant to give a note, the action being brought to recover money due upon an accounting. It follows that the statutes of frauds, G. L. (Ter.,Ed.) c. 106, § 6, and G. L. (Ter. Ed.) c. 259, § 1, are not applicable as a defence to this action.

We find no error in the decision of the Appellate Division.

Order dismissing report affirmed.