Connolly v. Sullivan

173 Mass. 1 | Mass. | 1899

Morton, J.

The exceptions in this case were not only to the refusal of the court to give the rulings which were requested, but to the ruling by which the jury were directed to return a verdict for the plaintiff, irrespective of the contract price, for a sum which the auditor had found was the fair market value of all the work and labor performed and furnished, less what the defendant had paid on account. That is, as we understand the exceptions, the court ruled in effect, as matter of law, against the objection of the defendant, that, on the auditor’s report, the plaintiff was entitled to recover the amount for which the jury were directed to return a verdict, without regard to the contract price. The auditor’s report was the only evidence in the case. It not only stated the general conclusions to which the auditor came, but it stated particular facts and circumstances relating to those conclusions, and we think that the defendant was entitled to go to the jury, if he so desired, on the question whether, upon the auditor’s report, the plaintiff was prevented by the defendant from going on with the contract, or whether it was terminated with his consent, manifested in such a manner that the defendant was justified in acting upon it. Marland v. Stanwood, 101 Mass. 470, 478. Emerson v. Patch, 129 Mass. 299. Peaslee v. Ross, 143 Mass. 275.

If the former was the case, then the plaintiff would be entitled to recover, independently of the contract price, the value of the labor and materials furnished and of which the defendant had had the benefit, and the contract price would be important or admissible only so far as it might tend to throw light, if at all, on the value of the labor and materials actually furnished. Fitzgerald v. Allen, 128 Mass. 232. If the latter was the case, then we think that the plaintiff’s right of recovery would be limited by the contract price, and the amount recoverable would depend on the ratio of the value of the labor and material actually furnished to what should be found to be the total cost of the work when completed according to the contract. See Veazie v. Hosmer, 11 Gray, 396; Atkins v. Barnstable, 97 Mass. 428; Hayward v. Leonard, 7 Pick. 181; Koon v. Greenman, 7 Wend. 121.

In other words, in that event we think that the rule adopted by the auditor would be substantially correct.

Exceptions sustained.