
    Charles Winchester & another vs. Moses Sibley.
    Worcester.
    Oct. 6.
    March 1, 1882.
    Lord, W. Allen & C. Allen, JJ., absent.
    After a debt from B. to A. was barred by the statute of limitations, A. became indebted to B. in a less amount, and B. orally agreed that this debt should be applied to his debt to A. so far as it would go; A. then brought an action to recover the amount due him from B., and, in an account annexed to Ms declaration, filed after the date of the writ, gave credit to B. for the amount which he owed him. Held, under the Gen. Sts. c. 166, § 18, that the action could not be maintained.
    Contract upon an account annexed. Writ dated May 15, 1880. The case was sent to an auditor, who found that there was due from the defendant upon said account the sum of $59.94, but that said claim was barred by the statute of limitations.
    At the trial in the Superior Court, before Colburn, J., there was evidence tending to show that the plaintiffs were formerly copartners in business in the manufacture of chairs under the name of C. & G. C. Winchester; that the defendant was in their employ between I860 and 1870; that the firm was dissolved in 1870; and that, at the time of the dissolution, the defendant was indebted to them for the amount found by the auditor upon the account annexed.
    After the dissolution of the firm, the plaintiff George C. Winchester continued the same business on his own account, and the defendant continued to work for him until 1878, when there was found to be due him from George C. Winchester about $20; and, in October 1878, the plaintiffs and the defendant agreed orally that the amount found due the defendant from George C. Winchester should be applied, so far as it would go, to the indebtedness of the defendant to the plaintiffs; but no memorandum in writing was made by any of the parties, and no entry was made on the books of the application of one account to the payment of the other, except that the same was credited upon the account annexed, which was filed on July 23, 1880.
    The judge ruled that this evidence would not take the case out of the statute of limitations. The jury returned a verdict for the defendant; and the plaintiffs alleged exceptions.
    
      G. F. Verry & F. A. Gaskill, (E. D. Howe with them,) for the plaintiffs.
    H. C. Hartwell, for the defendant.
   Field, J.

The evidence tended to show an executory agreement that the indebtedness of George C. Winchester to the defendant should be applied, so far as it would go, to the indebtedness of the defendant to the plaintiffs, but that it was never actually so applied. The account annexed upon which the credit appears was filed after the suit was brought.

The ruling was therefore correct. Gen. Sts. c. 155, § 13. Cary v. Bancroft, 14 Pick. 315. Blanchard v. Blanchard, 122 Mass. 558. Exceptions overruled.  