341 Mass. 731 | Mass. | 1960
Exceptions overruled. The plaintiff’s declaration contains two counts. Under the first, the plaintiff seeks to recover the balance alleged to be due under a special oral contract; under the second, the plaintiff seeks a similar amount on an account annexed. The jury found for the defendant on the first count and for the plaintiff on the second. The ease comes here on the defendant’s exceptions. Its main contention is that the judge, both in his original charge and in answering a question submitted by the jury during their deliberations, erred in instructing them that they could find for the defendant on the first count and for the plaintiff on the second. The judge made it clear to the jury that if they found that a special contract was not proved they should find for the defendant on count 1 but that it was open to them on the evidence to find for the plaintiff on count 2 for the fair value of the labor and materials supplied to the defendant. There was no error. If the plaintiff failed to establish
