324 Mass. 51

February 9, 1949 - March 7, 1949

Essex County


An offer of proof of facts going beyond an excluded question is ineffective. An agreement between a landlord and a tenant to apply the "value of an oil burner, oil, and wood toward the payment of rent which was due" would constitute an accord and satisfaction, not payment of the rent.

Evidence of an accord and satisfaction is not admissible under an answer pleading payment.

CONTRACT. Writ in the District Court of Newburyport dated September 12, 1947.

The action was heard by Kelleher, J.

B. J. Lojko, for the defendant.

P. I. Lawton, for the plaintiff.

LUMMUS, J. This is an action of contract for two months' rent due on April 1 and May 1, 1947, under a lease from the plaintiff to the defendant. The answer was a general denial and an allegation of payment. The judge found for the plaintiff, the Appellate Division dismissed a report, and the defendant appealed to this court.

Page 52

The defendant, in a letter to the plaintiff, admitted that he had not paid the rent in question. The defendant was a witness, and on direct examination was asked, "Did you, in any way, by word or action, convey your intention to the plaintiff, Mr. Hale, of applying the value of an oil burner, oil, and wood toward the payment of rent which was due April and May 1, 1947?" The question being excluded, the defendant offered to prove that he did convey that intention to the plaintiff, "and that the plaintiff, Albert Hale, agreed to this arrangement." One defect in the offer of proof was that it went beyond the scope of the question. Hallwood Cash Register Co. v. Prouty, 196 Mass. 313, 315. Coral Gables, Inc. v. Beerman, 296 Mass. 267, 269. Perrott v. Leahy, 302 Mass. 318, 321. Taber v. Tenovsky, 313 Mass. 324, 325. Commonwealth v. Doyle, 323 Mass. 633, 637. Moreover, the offered testimony tended to show accord and satisfaction, not payment, and accord and satisfaction was not pleaded. Grinnell v. Spink, 128 Mass. 25. Corrigan v. Payne, 312 Mass. 589, 591. Marr v. Heggie, 317 Mass. 286.

There was no error in the denial of the defendant's requests for rulings that the evidence did not warrant a finding for the plaintiff. The record says that the lease was offered in evidence, but the whole record shows that it was admitted in evidence. The lease showed that rent was due for April and May, 1947. There was evidence of an admission by the defendant that he had not paid that rent, and did not intend to pay it.

Order dismissing report affirmed.