The refusal to grant a new trial on the defendant’s motion, that the jury must have disregarded the instructions, was discretionary, and cannot be reviewed on exceptions. Lord v. Rowse, 195 Mass. 216, 219, 220. Its further request, that upon all the evidence the verdict was unwarranted, sought to raise a question which was not open, as it should have been raised before verdict. Loveland v. Rand, 200 Mass. 142, 144.
The exceptions taken at the trial relate to the refusal to rule as requested, and to the instructions.
It was conceded, that the amount found by the auditor, to whom the case was referred, was due the plaintiff, but the defendant having declared in set-off for a much larger sum, the items of which were admitted to be correct, the controversy before the jury was confined to the single issue, as to whether the counter claim had been discharged by payment.
*77The auditor states at length the business transactions between the parties. In the year of the defendant’s corporate organization, the plaintiff, who was in its employment as a salesman, became the owner of fifty shares of the capital stock, which was sold and issued to him by the company. To obtain the money to pay for the stock, he gave two promissory notes, payable on demand to the order of the president, who acted as treasurer and general manager. The notes were discounted by the treasurer at a national bank, who paid the interest as it became due, and charged the payments to the plaintiff in his general account in the company’s books. It was the plaintiff’s contention, that while the notes were outstanding, it was agreed that his salary should be increased, the excess to be reserved and applied in payment of the notes, and the auditor so found. If the memorandum in writing of the agreement was not signed by the parties, and the contract was oral, and not to be performed within one year from its date, the defendant did not object to the admission of the unsigned agreement or of the auditor’s report in evidence, but only sought to control and rebut the report by the evidence of its treasurer, that no agreement was ever made. The question at the trial was not whether the plaintiff could have enforced the contract by an independent action, if the statute of frauds of the State of New York or our own statute had been pleaded in bar. It was, whether the defendant agreed to apply in liquidation the reserved salary, even if the agreement might be unenforceable. The contract moreover had been executed and nothing remained to be done except to apply the money in payment. The first and second requests were rightly refused.
It appears from the report, that after much correspondence, and many interviews between the plaintiff and the treasurer as to the plaintiff’s contractual relations with the company, his liability on the general account, and the disposition which should be made of the notes, the plaintiff and the defendant’s treasurer met to adjust the indebtedness, and settle their differences. If the jury.accepted the report, they were warranted in finding that the conclusions reached by the auditor, that the general account which is the subject of the set-off was adjusted in connection with the settlement of the notes, were right, and that there was nothing due the defendant. We find no error in the refusal to *78give the third, fourth and fifth requests. The sum reserved appears to have been largely in excess of the amount required to pay the notes and the general account after the partial payments made by the plaintiff upon the first note were properly credited, and the authority of the treasurer to bind the defendant does not seem to have been disputed. Indeed from his own evidence he had practically the sole control of the company, and if the company’s books did not show the reserved salary, which the report states had accrued at the date of settlement, the plaintiff could not be deprived of what the treasurer is found to have conceded was justly due him. If the plaintiff had .admitted the correctness of the general statement, he was indebted to the defendant for the balance then shown to be due on the account. But he did not admit that he owed anything. The offer of the treasurer to settle the notes and the general account by waiving the balance, which the auditor finds the plaintiff accepted, accordingly operated as a liquidation and discharge of the debt. Donohue v. Woodbury, 6 Cush. 148. Tompkins v. Hill, 145 Mass. 379.
It is now contended that the settlement could not be shown, as an accord and satisfaction had not been pleaded. But the defendant neither objected to the report which was the only evidence of the settlement, nor suggested that the defense was not open under the answer. If relied upon, it should have been called to the attention of the presiding judge, when the plaintiff, doubtless would have been given an opportunity to amend. Oulighan v. Butler, 189 Mass. 287, 289. It cannot for the first time raise a question of pleading in this court on exceptions to the refusal of the presiding judge to give requests which, without calling his attention to the point required him in effect to rule, that the plaintiff’s defense was not open on the evidence. Burnett v. Smith, 4 Gray, 50, 52, 53. Jones v. Sisson, 5 Gray, 288, 294. Jones v. Wolcott, 15 Gray, 541, 542. Wall v. Provident Institution for Savings, 3 Allen, 96, 98. McLean v. Richardson, 127 Mass. 339, 344. Carpenter v. Fisher, 175 Mass. 9, 14. Nor is it material that the exceptions state that reference may be had to the pleadings. Bass v. Edwards, 126 Mass. 445. It, moreover, may be said of the ninth request, that it ignored the explicit finding of the auditor, and the judge was not required to *79instruct on a part of the evidence. American Tube Works v. Tucker, 185 Mass. 236. The sixth and ninth requests could not properly have been given.
No error appears in the instructions to the jury so far as argued. The charge is not fully reported, but the expression that the jury “had the right to find an increase from all the facts as they were developed at the trial ” should be read with the preceding statement, that there was no increase of salary unless the jury found a mutual agreement of the parties. The province of the jury was not invaded by any expression of opinion by the judge which disclosed a bias in favor of the plaintiff. Whitney v. Wellesley & Boston Street Railway, 197 Mass. 495.
Exceptions overruled.