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ANNOTATED LAWS OF MASSACHUSETTS
Copyright 2013 Matthew Bender & Company, Inc.,
a member of the LexisNexis Group
All rights reserved
*** Current through Acts 175 of the 2013 Legislative Session ***
PART III COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIL CASES
TITLE II ACTIONS AND PROCEEDINGS THEREIN
Chapter 231 Pleading and Practice
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 231, 31 (2013)
31. Equitable Defenses.
In the district courts, the defendant may allege in defense any facts which would entitle him in equity to be absolutely
and unconditionally relieved against the plaintiff's claim or cause of action or against a judgment recovered by the
plaintiff in such action.
HISTORY: 1883, 223, 14; RL 1902, 173, 28; 1913, 307; 1973, 1114, 164.
NOTES: Editorial Note
The 1973 amendment limited the application of this section to the District Courts.
Cross References
Pleading special matters under the Massachusetts Rules of Civil Procedure, see ALM Rules Civ. P. Rule 9.
Jurisprudence
27 Am Jur 2d, Equity 194 et seq.
61A Am Jur 2d, Pleading 125 et seq.
9A Am Jur Pl & Pr Forms (Rev), Equity, Forms 22, 27, 29, 30.
CASE NOTES
1. In general 2. Defenses to which section applicable 3. Pleading of equitable defenses 4. Election to proceed in equity
or at law
1. In general
This section does not apply to Probate Courts. Bailey v. Dillon (1904) 186 Mass 244, 71 NE 538, 1904 Mass
LEXIS 940.

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Equitable relief can be given in an action at law only under this section and ALM GL c 231 35. Corbett v. Craven
(1907) 196 Mass 319, 82 NE 37, 1907 Mass LEXIS 1094, dismissed Kenney v. Craven (1909) 215 US 125, 54 L Ed 122,
30 S Ct 64, 1909 US LEXIS 1739.
Offer of proof was insufficient to constitute an absolute defense. Cosmopolitan Trust Co. v. S. Vorenberg Co.
(1923) 245 Mass 317, 139 NE 482, 1923 Mass LEXIS 1030.
Tenant who is defendant in summary process action has equitable defenses available. Lawless-Mawhinney Motors,
Inc. v. Mawhinney (1986) 21 Mass App 738, 490 NE2d 475, 1986 Mass App LEXIS 1474.
Equitable defenses may be raised in a District Court proceeding. Eaton Financial Corp. v. Dunlavey (1991) 1991
Mass App Div 178, 1991 Mass App Div LEXIS 88.
Although equitable defenses may be raised in action at law in District Courts, only those equitable defenses which
would entitle party to absolute and unconditional relief may be advanced. Ahepa Charitable Corp. v. Marlborough W.
Assocs. Ltd. Partnership (1995) 1995 Mass App Div 15, 1995 Mass App Div LEXIS 8.
Defendant may raise an equitable defense in an action of law seeking reformation of a lease in District Court, since
it would be an absolute and unconditional remedy. Neill v Fineberg (1978, Mass App Div) 1978 Adv Sheets 277.
In action by plaintiff-seller for balance of purchase price owed under contract of sale of business, where defendant
counterclaimed for return of initial payment, trial judge erred in ordering rescission of contract and ordering that
plaintiff-seller return initial payment since trial judge was without authority to provide equitable relief and ALM GL c
231 31 provided only for allowance of equitable defenses and could not be used by defendant-buyer to receive return
of initial payment. Morris v. Ramos (1988) 1988 Mass App Div 16.
2. Defenses to which section applicable
This statute applies to a writ of entry as well as to other actions at law. Nazro v. Long (1901) 179 Mass 451, 61 NE
43, 1901 Mass LEXIS 595.
In an action to recover an assessment on stock in a Connecticut corporation because of an unpaid balance, the
defendant's right to declare in set-off is governed by the law of Massachusetts notwithstanding this section.
Butterworth v. Smith (1921) 240 Mass 192, 133 NE 100, 1921 Mass LEXIS 1164.
An offer of proof made by defendant constituted no defense at law, or in equity, to the plaintiff's claim. Allen v.
Berry (1924) 247 Mass 540, 142 NE 785, 1924 Mass LEXIS 893.
Where, in an action to recover a deposit made under a contract for the purchase of land, it is found that the
defendant would have been entitled to a decree for specific performance in a bill in equity seasonably brought against
the plaintiff, he was entitled in equity to be "absolutely and unconditionally relieved against the plaintiff's claim," within
the meaning of this section. King v. Milliken (1924) 248 Mass 460, 143 NE 511, 1924 Mass LEXIS 987.
Under this section, defendant may not have an equitable set-off of claims which could not be set-off at law against
claim of an insolvent trust company on a note, where to do so would be to give such depositor priority over other
creditors entitled to share equally in any recovery from him. Cosmopolitan Trust Co. v. Wasserman (1925) 251 Mass
514, 146 NE 772, 1925 Mass LEXIS 1051.
The equitable right given by this section is not limited to a set-off permitted at law. Brickley v. Wrenn (1925) 252
Mass 16, 146 NE 797, 1925 Mass LEXIS 1064.
The equitable defenses which may be relied on are only those which entitle one to be absolutely and
unconditionally relieved. Bancroft Trust Co. v. Canane (1930) 271 Mass 191, 171 NE 281, 1930 Mass LEXIS 1100.
A mutual mistake in a written instrument may be set up as an equitable defense in an action at law in proceedings to
enforce a written agreement, and in accordance with the principles of equity, parol evidence is admissible in support of
the same. Walkowicz v. Giso (1957) 13 Mass App Dec 174.
Although equitable defense may be raised in action at law, laches is inapplicable to actions at law. Srebnick v. LoLaw Transit Management, Inc. (1990) 29 Mass App 45, 557 NE2d 81, 1990 Mass App LEXIS 388.
Reformation of written instrument may be sought as part of defense. Griffin v. Cogliano (2002) 2002 Mass App
Div 55, 2002 Mass App Div LEXIS 23.

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3. Pleading of equitable defenses

When an equitable defense, under this section, is not pleaded at law within the time allowed for filing an answer,
and a request is made to allow an amendment to the answer setting up such a defense, the power of the court to allow
such an amendment is governed by ALM GL c 231 51 and 52; but the allowance of amendments is within the
discretion of the court, and no exceptions lie to the refusal of the court to allow an amendment in the exercise of this
discretion. First Nat'l Bank v. Hall (1898) 170 Mass 526, 49 NE 917, 1898 Mass LEXIS 268.
The contention that there are equitable considerations in the case, which should take it out of the rules of the
common law, is without merit where the answer in the case does not purport to set up an equitable defense under this
section, but purports to be an ordinary answer at law. Isenburger v. Hotel Reynolds Co. (1901) 177 Mass 455, 59 NE
120, 1901 Mass LEXIS 672.
The fact that a defendant has pleaded in set-off as the holder of a certain note is no reason for refusing to allow him
to amend his answer by setting up an equitable defense, averring payment of the note by him in discharge of a guaranty
thereon. Sargent v. Stetson (1902) 181 Mass 371, 63 NE 929, 1902 Mass LEXIS 866.
In a real action a tenant can introduce evidence of facts which would entitle him to relief in equity against the
demandant's claim only when he has alleged such facts as an equitable defense under this section. Hastings v. Lawson
(1904) 187 Mass 72, 72 NE 252, 1904 Mass LEXIS 1084.
A defendant who wishes to set up an equitable defense, or a plaintiff who wishes to claim equitable rights by a
replication under this statute, should put his pleadings in such a form as to show that he seeks equitable relief, which
otherwise would not be open to him in such an action. Corbett v. Craven (1907) 196 Mass 319, 82 NE 37, 1907 Mass
LEXIS 1094, dismissed Kenney v. Craven (1909) 215 US 125, 54 L Ed 122, 30 S Ct 64, 1909 US LEXIS 1739.
Unless a plaintiff sued at law for an alleged breach pleads an equitable defense under this section, it is precluded at
the trial from introducing extrinsic evidence to prove in defense that, by mutual mistake as to the parties to be bound,
the written instrument embodied a different contract from that which they actually made. Eustis Mfg. Co. v. Saco Brick
Co. (1908) 198 Mass 212, 84 NE 449, 1908 Mass LEXIS 921.
Failure to plead relief in equity, as given by this section, prevents the court from considering the question. Pollard
v. Ketterer (1915) 221 Mass 317, 108 NE 1086, 1915 Mass LEXIS 850.
Executory agreement to settle pre-existing claim may be specifically enforced and may be set up as equitable
defense in action on original claim. Peters v. Wallach (1975) 366 Mass 622, 321 NE2d 806, 1975 Mass LEXIS 1123.
In a summary process action, a tenant should have been allowed to prove the equitable defense that he had superior
title to the premises, even though the conveyance by which he received such title was defective because it was a
conveyance by the tenant's father individually, rather than as trustee of the trust which actually owned the premises.
Griffin v. Cogliano (2002) 2002 Mass App Div 55, 2002 Mass App Div LEXIS 23.
4. Election to proceed in equity or at law
After a party has elected to proceed in one way and has taken the opinion of the court upon the merits of the
proceedings, he ought not, without good cause shown, to be permitted to abandon that, and to avail himself of the
chance of obtaining a more favorable decision by a separate proceeding before another tribunal. New York N. H. & H.
R. v. Martin (1893) 158 Mass 313, 33 NE 578, 1893 Mass LEXIS 293.
A bill in equity will not lie to restrain the prosecution of an action of law, on grounds which the plaintiff in equity
set up as an equitable defense to the action at law, and on which he has been heard fully in that action, although
technically he was not a party to the action at law, having been permitted to conduct the defense in behalf of the nominal
party. Nash v. D'Arcy (1903) 183 Mass 30, 66 NE 606, 1903 Mass LEXIS 700.
A defendant in an action at law to which he has an equitable defense need not set up such defense in his answer
under this section, but may by a suit in equity have further prosecution of the action at law enjoined; the defense at law
under the statute and the bill in equity being concurrent remedies. Eustis Mfg. Co. v. Saco Brick Co. (1908) 198 Mass
212, 84 NE 449, 1908 Mass LEXIS 921.
A plaintiff, who in the action at law was sued as one of the executors, did not waive his right to assert his individual
claim as devisee and legatee under his father's will by failing to set up as executor in the action at law the equitable
defense of election under this section. Noyes v. Noyes (1919) 233 Mass 55, 123 NE 395, 1919 Mass LEXIS 900.

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Any objection to the jurisdiction of the court on the ground of the adequacy of the remedy at law must be pleaded
"without delay and at the earliest opportunity." Baker v. Langley (1923) 247 Mass 127, 141 NE 671, 1923 Mass LEXIS
1241.
It has been decided that this section, permitting equitable defenses in an action at law, does not prevent a party from
proceeding in equity to establish his rights; he has an election either to assert his equitable rights by way of answer to
the action or to make them the basis of a suit in equity. Bancroft Trust Co. v. Canane (1930) 271 Mass 191, 171 NE
281, 1930 Mass LEXIS 1100.
Where the bill does not allege facts which constitute an equitable defense to the actions at law, available therein
only by force of this section, the case is not within the rule that a person at his option may set up an equitable defense in
an action at law or proceed by the concurrent remedy of an independent suit in equity. Hooker v. Porter (1930) 271
Mass 441, 171 NE 713, 1930 Mass LEXIS 1160.
Even if, on any ground, equity has concurrent jurisdiction, it will not take jurisdiction for the purpose of
transferring the trial of a case from the court of law in which actions are already pending to a court of equity, where it is
not shown that the administrator cannot present his legal defense as effectively in the actions at law as he could in a suit
in equity. Hooker v. Porter (1930) 271 Mass 441, 171 NE 713, 1930 Mass LEXIS 1160.
Although a complete equitable defense may be set up in an action at law, the party having the equitable defense has
an election, either to set it up under the statute or to bring a bill to restrain the prosecution of the action at law or the
enforcement of the judgment therein. Liberty Mut. Ins. Co. v. Hathaway Baking Co. (1940) 306 Mass 428, 28 NE2d
425, 1940 Mass LEXIS 920.
In the absence of a statutory duty to interpose an equitable defense in an action at law, it is not necessarily laches
for a defendant having such a defense to wait deliberately until judgment at law has been rendered against him and then
bring a suit to restrain the enforcement of the judgment. Liberty Mut. Ins. Co. v. Hathaway Baking Co. (1940) 306
Mass 428, 28 NE2d 425, 1940 Mass LEXIS 920.
Plaintiff in suit to rescind settlement agreement had an adequate remedy by petition to assess damages in eminent
domain. Klein v. Commonwealth (1945) 318 Mass 592, 63 NE2d 360, 1945 Mass LEXIS 623.
Notwithstanding the statutory right, under this section, to raise equitable defenses at law, a plaintiff is not barred
from proceeding in equity for reformation of a lease where the equitable remedy may prove more complete and
appropriate. De Vincent Ford Sales, Inc. v. First Mass. Corp. (1957) 336 Mass 448, 146 NE2d 492, 1957 Mass LEXIS
665.
Where a lessee brought a bill for a declaration as to its rights under a lease and to restrain the lessor from
proceeding with an action for summary process against the lessee, even if the lessee could set up an equitable defense to
the summary process action by virtue of c 231, 31, as it did, it could instead bring the bill for declaratory relief
because the lessee's remedy at law could not be said to be plain, adequate and complete. Ace Trophy Co. v. Gordon
(1968) 354 Mass 767, 238 NE2d 363, 1968 Mass LEXIS 956.
Where findings of a District Court judge in actions by lessors for rent disclosed that the lessee had contended that
the lessors had failed to comply with the covenants of the lease and that the lessee had been constructively evicted, the
District Court, by virtue of this section, became the tribunal for litigating the lessee's equitable defenses that conduct of
the lessors justified the lessee in leaving the premises, and the lessee could not raise such defenses in a subsequent
equity proceeding. Urbano v. Ouimet Stay & Leather Co. (1968) 355 Mass 32, 242 NE2d 878, 1968 Mass LEXIS 736.