231 Mass. 362 | Mass. | 1918
These are three independent actions of contract to recover for work, labor and material furnished or performed at different intervals of time, on a building occupied by a business corporation, the Wonderland Amusement Company. 'The cases were tried together and submitted to a jury under an instruction "to decide each case upon the particular testimony introduced with reference to that case.”
There is no question made by the defendant but “that if the plaintiff is entitled to recover in any of these cases he is entitled to recover that amount which the papers in that particular case disclose as the amount which the plaintiff claims.” At the close of the evidence the defendant, in each case, requested the judge to direct a verdict for the defendant. In each case, also, the defendant in substance requested the judge to instruct the jury that the plaintiff could not recover because of the statute of frauds, and “That it was the duty of the plaintiffs in the absence of any express statement on the part of the defendant Dove, to ascertain at then- peril the person or persons to whom credit for the work to be performed was to be given, and that their thought, without actual investigation upon their part, that the defendant was responsible, .does not make him so.” In the case of Ephraim A. Peabody and another the defendant requested the judge to rule: “That, upon the testimony of the plaintiffs’ witness O’Connell, the plaintiffs having been notified before the completion of the work that the Wonderland Amusement Company was properly liable for the bill, if they elected to go on with the work after that, as they did, they then waived any rights against the de-'
In substance, but in varied phrases, the jury repeatedly were instructed that the plaintiffs in any of the cases could not recover upon the theory that the corporation was really indebted to them and that the defendant promised and undertook to pay, in the event the corporation should not pay, the amount which the corporation was obligated to pay; and that the plaintiffs in each action could recover only upon the theory that the defendant did, in the first instance, agree to pay, that he directly obligated himself to pay, and that his obligation is not that of a guarantor, but of an, original promisor. These instructions were in accord with the principles of law governing the application of the statute of frauds, R. L. 74, § 1, cl. 2, applied by this court in similar cases. Swift v. Pierce, 13 Allen, 136. Bugbee v. Kendricken, 130 Mass. 437. O’Connell v. Mount Holyoke College, 174 Mass. 511. Barker v. Thayer, 217 Mass. 13. Ribock v. Canner, 218 Mass. 5. While the work was performed and furnished upon the building of another, the evidence warranted the jury in finding, and we are bound to assume they did find, that no one of the plaintiffs gave any credit to the corporation or to any other person whose obligation to them the defendant undertook to discharge if the corporation, or that person, did not perform its contract. ‘
This disposes of the defence of the statute of frauds, and leaves as the principal remaining question the issue whether there was any substantial evidence to warrant the jury in finding a contract was entered into between these plaintiffs, or any of them, and the defendant. \
The evidence in the action of James H. Bride and another, considered apart from the testimony in the other cases, was not sufficient to warrant its submission to the jury. Before the work was performed and the material furnished upon the building of the corporation, neither Bride, nor any one representing him in connection with the work for which he seeks to hold the defendant, ever saw or talked with the defendant in relation to the work, or had any talk or communication with any person who, on the
In the case of Charles I. Alexander and others the jury would be warranted in finding that Dove undertook to be personally responsible for the work which the Alexanders were about to perform from the statement which the jury could find Dove made to Alexander, seeking the job, in these words: “I am not in on this thing now, but I have got some money coming to me and I am going to put some money into it, and if you consider my word worth anything to you, you can go ahead and do the job, and you will get your money,” when the above statement was considered in connection with the statement which the jury could find Dove made, when asked to pay after the work was done, "that he considered the bill a personal obligation and would pay it himself if the company did n’t.” The question is close, but it could not have been ruled as a matter of law that there was no evidence to warrant a submission of that issue of fact to the jury.
In the case of Ephraim A. Peabody and another there is an abundance of evidence to warrant the submission of that issue to the jury. The jury could find that the plaintiffs talked with Dove and another in reference to the work; that they went to the place where the work was to be done; that Dove told the plaintiffs what was to be done; that they saw Dove as the work progressed, — talked with him about it; that he “gave directions as to how the work should be done;” and “that Dove thought cost plus on an alteration job was the best way to do the work, and all agreed.”
It is plain the judge rightly could not have instructed the jury that the plaintiffs Peabody, as matter of law, waived any right against the defendant, if notified before the completion of the work that the Wonderland Amusement Company was properly liable for the bill, if they elected to go on with the work after that.
It follows that in the case of Bride the exceptions must be sustained. No reversible error appearing, it follows that in the cases of Alexander and of Peabody the entry must be, exceptions overruled.
So ordered.
