292 Mass. 424 | Mass. | 1935
The plaintiff on April 22, 1933, entered into a written contract with one Rosenbaum wherein the plaintiff agreed to furnish the labor and material for the
After the completion of the work the plaintiff brought an action in which the corporation, Rosenbaum and Fistel were named as defendants. In the first count of the declaration he sought to recover a balance due for labor and materials furnished in the erection of the building to be used as an ice plant, in the second count a balance due for extra labor and materials furnished in the erection of a building to be used as an office, in the third count for extra labor and materials furnished in connection with the building of the ice house, and in the fourth count for "Lumber and building materials used by the defendants (purchased by plaintiff . . .).” When the case was reached for trial before a jury, Fistel was the only defendant present or represented by counsel. On motion of the plaintiff the corporation and Rosenbaum were defaulted, and the trial proceeded against Fistel as the sole defendant. The jury returned a verdict -for the plaintiff on each count of the declaration. The exceptions of Fistel here presented are to the denial of his separate motions for a directed verdict on each count of the declaration and to a portion of the judge’s charge.
The jury were warranted on the testimony of the plaintiff in finding the following facts in addition to those earlier related: On May 2 the plaintiff had completed the foundation of the ice plant building and was thus entitled to the first instalment payment under his contract with Rosen
Fistel, who pleaded the statute of frauds, contends as to the first and fourth counts of the declaration that any promise which could on the evidence have been found to have been made by him was a “special promise to answer for the debt ... of another,” G. L. (Ter. Ed.) c. 259, § 1, Second, and that therefore the action could not be maintained on those counts. So far as the first count is concerned, the evidence warranted the finding that there was no promise by Fistel to pay the debt of Rosenbaum within the meaning of the language of the statute, but that there was a joint promise by Rosenbaum and Fistel to pay for labor and material to be provided by the plaintiff in the erection of the ice plant. Where two jointly promise to pay a debt the promise of one is not a promise to pay the debt of the other and is not within the statute of frauds.
Counts two and three are for labor and materials furnished by the plaintiff in doing extra work not contemplated in the main contract. The evidence warranted the finding that this work was done under new and original promises by Rosenbaum and Fistel jointly. To such promises the statute of frauds would have no application.
The plaintiff in his fourth count seeks the recovery of $29.76 for materials “purchased by [the] plaintiff” and “used by the defendants.” The bill of exceptions recites that the plaintiff “testified that some material was purchased from a lumber concern by Rosenbaum and charged to the plaintiff for $29.76, and that in a conversation between Fistel and a salesman for this concern in the plaintiff’s presence, Fistel orally promised to pay it.” This sentence, which is not entirely clear as to whose debt Fistel promised to pay
Fistel took an exception to a portion of the judge’s charge with reference to the first count dealing with the matter of a novation. The judge instructed the jury in substance that Fistel could not be held liable unless it were found that the plaintiff refused to go on with the work and that Fistel for his own advantage, which furnished a consideration, promised to pay for it. There was no specification of the ground of the exception and the whole of the charge does not appear in the record. Taken by itself
It is contended on behalf of Fistel that since the corporation was included as a defendant the plaintiff might at a trial rely on either one of two alternative theories as to the dealings of Fistel with the plaintiff, one, that Fistel was acting as agent for the corporation, the other, that he was acting in his individual capacity, and that by obtaining a default against the corporation the plaintiff must be held to have elected to proceed on the first theory and was thereby precluded from maintaining the action against Fistel. It is manifest that the plaintiff in securing the default did not as matter of fact have the intention to make such an election. An essential element of the theory on which he proceeded to try his case was that the promise of Fistel on which he relied was the result of the refusal of the plaintiff to recognize any liability on the part of the corporation. His position was that Fistel was liable and the corporation was not. The contention of Fistel now is that the -entry of the default against the corporation bars recovery by the plaintiff against Fistel as matter of law. In the circumstances appearing the default cannot be given that effect. It was entered not as the result of a motion of Fistel that the plaintiff be required to make an election or upon a direction of the court to that effect, but upon the plaintiff’s own motion. There was at the time no necessity that an election be made. While the default removed the corporation as a participant in the trial, it was not a final disposition of the case against the corporation. Hooton v. G. F. Redmond & Co. Inc. 237 Mass. 508, 513. Treasurer & Receiver General v. Macdale Warehouse Co. 262 Mass. 588, 594. No judgment was ever entered on the default. The trial judge had the power in his discretion, for the promotion of justice, at any time before judgment, to remove the default. Hurnanen v. Gardner Automobile Co. 225 Mass. 189. Cohen v. Industrial Bank & Trust Co. 274 Mass. 498, 500. G. L. (Ter. Ed.) c. 231, § 57. He exercised that power after verdicts were returned against Fistel and allowed the plaintiff’s motions to remove the default and for leave .to dis
The exceptions of Fistel so far as they pertain to the first three counts are overruled and judgment for the plaintiff is to be entered on the verdicts on these counts. Fistel’s exception to the refusal of the judge to direct a verdict for him on the fourth count is sustained and judgment is to be entered for him on that count. G. L. (Ter. Ed.) c. 231, § 122.
So ordered.