
    * Francis Wilby versus Josiah Harris.
    It was agreed between a merchant and a tradesman, that the latter should do certain labor for the former, and receive his compensation in goods from the merchant’s store ; the labor was performed, and the goods delivered ; and, in an action for the price of the goods, it was holden, that the plaintiff was not entitled to recover, although the defendant had neglected to file his account as a set off.
    This was assumpsit, brought by the plaintiff, as surviving partner of the late house of Harrison fy Wilby, to recover $ 897, for sundry goods sold and delivered, and moneys paid by said partners in the lifetime of the said Harrison, according to the account annexed to the writ.
    At the trial, which was had upon the general issue, before Jackson¡ J., at the sittings here after November term, 1813, all the items charged in the plaintiff’s account were proved or admitted.
    The defendant offered to prove, that, at the time when those charges wer.e made, the said Harrison §/• Wilby owed him for sundry labors and services ; and that, when those services and labors were rendered, the said Harrison agreed to pay the defendant therefor in goods out of the store of the said Harrison &/• Wilby, and that he accordingly took up the articles mentioned in the declaration, from time to time, as he had occasion for them. The defendant exhibited his account against the said house, of the aforesaid services, consisting of a great number of items, charged at different times, including part of the same period in which the plaintiff’s charges against him were made ; and he offered to prove that the said services were rendered as charged. He did not offer to show that his said account had ever been exhibited to the said Harrison Wilby, or in any manner liquidated or assented to by them ; and the plaintiff denied that such services had ever been rendered to the said partners ; or that he,.as surviving partner, was in any manner liable therefor.
    The said account had not been filed by way of set-off, according to the provisions of the statute of 1784, c. 28, § 12.
    The judge rejected all the evidence offered hy the defendant, and a verdict having been returned for the plaintiff, the defendant moved for a new trial on account of that rejection.
    *At the last October term, Ward, for the defendant,
    contended, that the goods for which the plaintiff now demanded payment were themselves in truth delivered to the defendant in payment for the labor and services which he offered to prove at the trial. It must be considered as the original contract between Harrison and the defendant, that the services of the latter should be set off against this demand. There was never an understanding that money should be demanded or paid on either side, except for an eventual surplus or balance. Nothing can be more unjust than to demand this money of the defendant, and to turn him over to the insolvent estate of Harrison for a partial payment of this demand. 
    
    
      Peabody, for the plaintiff,
    insisted, that the defendant’s account, not being filed according to the statute, nor pleaded as a set-off, nor being between the said parties, could not avail him in this action. It cannot be considered as payment; because no agreement is pretended as to the price or value of the services, and no adjustment was ever made between the parties to the transaction. 
    
    
      
       10 Mass. Rep. 319.—1 H. Black. 239. — 4 D. & E. 343.-5 D.& E. 138.
    
    
      
       1 Strange, 23, 573.-4 Esp. Rep. 229.-6 D. & E. 52, 139 — Cowp Dig. tit Pleader, W, 29.
    
   Curia.

The case as reported admits, as we think, of an equitable determination, without violation of any principles of law. It finds that Harrison was indebted to the defendant for work and labor ; that he agreed to pay for the same in goods from the store in which he was concerned as a partner ; and that the goods, for the price of which the present action was brought, were delivered in pursuance of that arrangement. The goods were, in truth, never sold to the defendant, but were delivered to him in payment of a preexisting debt ; and, although a part of the labor was performed after some of the goods were delivered, that will not vary the character of the transaction.

Either partner had sufficient control of the goods, for a pur pose like this ; for, as it respects their interests, it may be considered a sale.

* There never was any implied agreement or promise by the defendant to pay for these goods ; and, if there were, it was a promise to pay in labor, which would defeat this action.

New trial granted  