Ford v. Burchard

130 Mass. 424 | Mass. | 1881

Moeton, J.

The parties entered into a written contract, by which the defendant agreed to build a house for the plaintiff upon the terms therein stipulated. The presiding justice of the Superior Court, before whom the case was tried without a jury, found as facts that the plaintiff broke the contract, and that the defendant justifiably abandoned and rescinded it. Under these circumstances, the defendant was entitled to maintain an action to recover the value of the materials furnished and the work done by him for the plaintiff. Fitzgerald v. Allen, 128 Mass. 232. And his claim for such materials and services was a demand which he may set off under our statutes. Gen. Sts. c. 130, §§ 1, 3. The defendant’s declaration in set-off states with unnecessary particularity the facts that the parties made a contract, that the plaintiff broke it, that the defendant was thereby prevented from performing it, and that, by reason thereof, the defendant had the right to recover the value of the materials furnished and services done by him; all this is stated as inducement to the gist of the count, which is that the defendant furnished labor and materials to the plaintiff, as set forth in the account annexed, and that the plaintiff owes him $553.89, according to said account. This cannot be construed as a count for unliquidated damages for a breach of the contract. Rejecting as surplusage the unnecessary averments, there remains a good count on an account annexed for labor and materials furnished. The declaration therefore sets out a claim which the defendant is entitled to avail himself of under our statutes of set-off.

it follows that, according to the terms of the report, the defendant is entitled to judgment for the balance found to be due him, unless the court erred in its rulings to which the plaintiff excepted. The first exception of the plaintiff was to the ruling that the auditor’s report was prima facie evidence of the facts and findings therein stated. This ruling was in accordance with the statutes and the adjudications in this Commonwealth, and was correct. Holmes v. Hunt, 122 Mass. 505, and cases cited.

It appeared at the trial that the plaintiff refused to make the payments required of him by the contract. He alleged, as an excuse for this refusal, that he had accepted orders drawn by the defendant, and had incurred liabilities for lumber to be used in building the house, in excess of the payments then due; and claimed the right to apply these liabilities to the first payments to be made by him under the contract. The court found, as a fact, that there was no agreement between the parties that any such application should be made; and thereupon ruled “that the liabilities incurred by the plaintiff for lumber and to the lumber-dealer did not, as matter of law, release the plaintiff from his obligation to make the payments required by the terms of the contract to be made; ” to which the plaintiff excepted.

This contract is loosely drawn, but we think the intentions of the parties can be ascertained from it with reasonable certainty. It will be observed that the payments specifically provided for amount to $1900, leaving a balance of $700 to make up the whole consideration. It seems to us that the parties intended that the $600 to be reserved for the lumber-dealer was to be reserved out of this balance not otherwise appropriated and applied; and that the several payments specifically provided for were to be made in cash, to enable the defendant to carry on the work.

When the plaintiff incurred liabilities to the lumber-dealer, therefore, he had the right to look for his security to the reserve fund provided by the contract, but had no right, without the consent of the defendant, to apply those liabilities to the several specific payments required by the contract. The ruling of the Superior Court upon this subject was therefore correct.

The result of the whole case is that the defendant is entitled to judgment for the balance found to be due to him upon his declaration in set-off.

Judgment accordingly.