333 Mass. 678 | Mass. | 1956
These are two actions of contract, tried together in the Municipal Court of the City of Boston, to recover for labor and materials furnished to the defendant at premises numbered 2 Union Street, Boston. The plaintiffs are Harvard Electric & Machine Co., Inc., a corporation, hereinafter called Harvard, and Abraham Ginsberg and others, copartners doing business as I. Ginsberg and Sons, hereinafter called Ginsberg. The defendant in each
At a conference of Benjamin Ginsberg, Goldstein, Krasnow, and Mark Friedman of Harvard held a few days before February 20 Ginsberg suggested that the electrical work be taken out of his contract and that he would credit G & K with $500. All parties present agreed. On February 20
Ginsberg’s substitute declaration alleged an oral contract entered into with G & K on or about January 29, 1951, for labor and materials in the construction of a store at 2 Union Street at a total price of $4,400 with extras subsequently ordered for an agreed price of $2,500, the balance claimed to be due being $1,700. Harvard declared in two counts for labor and materials with accounts annexed. In the first count $417.20 was alleged to be due and in the second $580.87. All items for labor in the accounts annexed were dated on and after February 20 except two items which were dated February 19. The answer of G & K in each case consisted of a general denial, payment, “and a special plea of ultra vires of the corporate powers of the defendant.”
The judge found for Ginsberg in the amount of $1,200 and for Harvard “on both counts” of its declaration. Identical requests for rulings were presented by the defendant in each case. Each case was reported to the Appellate Division on the rulings made by the judge on the following requests: “11. There is not sufficient evidence to warrant a finding for the plaintiff. Ruling of the court: Denied. 12.
The evidence which we have recited is contained in the report of the trial judge to the Appellate Division and is stated to be all the evidence material to the questions reported. No question appears to have been raised as to the authority of Goldstein and Krasnow to act for G & K, to the authority of Benjamin Ginsberg to act for his firm, and to the authority of Friedman to act for Harvard.
There was no error in the rulings of the judge upon the defendant’s requests in the Ginsberg case. He could find that G & K contracted with Ginsberg to remodel the premises at 2 Union Street; that it promised to pay them for the work; that the work was performed; and that G & K owed Ginsberg the unpaid balance of the stipulated price. The evidence of the later discussion by the parties concerning the insertion of the name Adams Beef Co., Inc., in a written contract, of the submission to it of a bill for the work performed, and of the acceptance by Ginsberg of its checks did not require the finding of a novation. “There is no novation until the creditor accepts the new debtor in full substitution for the former one and thus completely re
In the Harvard case there is a complete lack of evidence as to any express contract between Harvard and G&K and as to any work performed by Harvard for G & K for which an agreement to pay could be implied. Harvard’s contention that it had been substituted for Ginsberg by agreement with G & K is not supported by the evidence. All that appears is that by elimination of the electrical work from the Ginsberg contract, G&K was left free to contract for it with Harvard. There was no evidence that it did so. The appeal by Harvard brings here for review all the rulings of law made by the trial judge which were reported by him to the Appellate Division. Barry v. Sparks, 306 Mass. 80, 85. We think that there was error in refusing to grant the defendant’s requests numbered 11 and 12. It is unnecessary to consider the correctness of the ruling on request numbered 17 as in the absence of evidence of a contract no question of ultra vires arises.
Order of the Appellate Division affirmed in each case.