268 Mass. 88 | Mass. | 1929
This is an action of contract. When the case went to trial there were two counts in the plaintiff’s declaration as amended. The first count alleged $1,052.06 to be due upon an accounting had with the defendant. No evidence is reported to sustain this count and it need not be considered further. The second count set forth a written contract whereby the plaintiff agreed with the defendant to do all lathing and plastering on an apartment house in process of construction in accordance with identified plans and specifications for a specified sum, alleged full performance on his
The case went to trial upon these pleadings. Much evidence upon the subject of the quality of work performed by the plaintiff pursuant to the contract was introduced. A large number of cracks in the plastering and stucco work had appeared in various parts of the building, responsibility for which the defendant undertook by testimony to fasten upon the plaintiff and to show that he did not comply with the requirements of the contract. There was evidence on behalf of the plaintiff tending to show that his work was in conformity to the terms of the contract. The finding was to the effect that .the plaintiff substantially and in good faith conformed in all particulars to the conditions of the contract and made no intentional departure therefrom; that the cracks were caused by shrinkage of lumber or timber installed in the building and were beyond the control of the plaintiff, and that, with the exception of two small hall ceilings for which allowance, apparently of about $37, was made to the defendant, the plaintiff performed all the work required by the contract in a workmanlike manner. Numerous requests for rulings made by the defendant were dealt with in some detail with statement of reasons for granting or denying, except the first, which was that the defendant was entitled to a finding and which was simply denied. The finding was for the plaintiff in the sum of $1,015 with interest from the date of the writ.
The defendant claiming to be aggrieved by the rulings and refusals to rule, the case was reported to the Appellate Division for its determination. After the case was there pending, it was recommitted to the court of first instance upon motion of the plaintiff to amend his declaration in order that the trial judge might decide that motion. That proposed amendment added a third count upon an account annexed, the charge being a single item for plastering on the apartment
This point of practice has not been raised at the bar, but
In this Commonwealth the rule, contrary to that in many other jurisdictions, is that, if the declaration is upon a building contract alone without a count upon a quantum meruit, there can be no recovery unless there has been a complete performance of the contract, and that it is not enough to show that the contractor has attempted in good faith to perform his contract and has substantially performed it, although failing by inadvertence to conform literally to its terms, with proper deductions to the other party for such imperfections or omissions. Allen v. Burns, 201 Mass. 74. Bowen v. Kimbell, 203 Mass. 364, 369-371, and cases collected. But in the case at bar the defendant had pleaded recoupment. That answer opened a wide field of investigation. Taft v. Montague, 14 Mass. 282. Austin v. Foster, 9 Pick. 341. Carey v. Guillow, 105 Mass. 18. Wiley v. Athol, 150 Mass. 426. See White v. McLaren, 151 Mass. 553. The range of inquiry at the trial well may have overstepped purely technical bounds. It naturally might have covered the whole question of damage to the defendant from all causes and the benefits actually received by him. It cannot be determined with accuracy upon this record, which does not disclose by report what occurred before the trial judge at the time of the hearing upon the motion to amend the declaration. The allowance of that amendment was within the power of the judge and there is nothing in the record to show that he committed positive error of law in allowing it. In the ab
There is no ground for the conclusion that there was abuse of judicial discretion in allowing the final amendment to the declaration. Under the declaration as amended there is no error of law in allowing the plaintiff to recover on the finding. All the points argued by the defendant have been considered. There is no reversible error.
Order dismissing report affirmed.